Research On ISDS Reform Of The New-Generation IIAs

Investor-State Dispute Settlement(hereinafter referred to as "ISDS")is an essential dispute resolution system under the principle of rule of law between investors and the host country.And it plays an important role in the new-generation international investment agreements.ISDS is mainly carried out in the form of international arbitration,supplemented by other methods.However,due to the lack of consistency among the investment arbitral awards,certainness of the arbitrator independence,transparency in procedures,with great amount of cost of time and financial burden,etc.,the ISDS legitimate crisis has been found and recognized.Faced with this situation,in the investment law community many different theories and methodologies has appeared to form a comprehensive investment theory framework and theoretical tool for ISDS reform.These methodologies include the Credible Commitment Approach,the Global Regime for Investment Approach,the New Constitutionalism Approach,the Global Administrative Law Approach and the Investment Law Agency Approach.At the same time,major countries in the world have also demonstrated their position on ISDS reform.This research uses a variety of methods to conduct a comprehensive study.First of all,the author uses the historical research method to analyze the evolution of ISDS,explain the causes,and try to find the reason behind the ISDS dilemma with the background of the historical development of investment law.The author tries to look for solution with keeping an eye on the negotiation achievements of the newgeneration international investment agreements,such as CETA,CPTPP,and EVFTA.Based on the treaty negotiation progress and the investment arbitration practices,this paper takes the ISDS justice crisis as the starting point for research,and examines the reform process of the new-generation international investment agreements,and finds a theoretical viewpoint to reconstruct the fragmented ISDS rule system.Under the guidance of the basic theory of investment law that has already been formed,it is also the main idea of this research to find both the improvement and the drawback of the new-generation international investment agreements on ISDS.Undoubtedly,this research is also set to interpret the ISDS rules in the new-generation investment agreement on the basis of case study.The combination of case study and treaty interpretation shall be the research method based on which this thesis clarify both the breakthroughs and deficiencies of the new generation of international investment agreements.This thesis consists of six chapters.Chapter 1 introduces the key issue;Chapters 2 to 4 are focusing on analysis of the key issue;Chapter 5 is the policy analysis and recommendation from the Chinese perspective;and in the Chapter 6 comes the conclusion.Chapter 1 "Introduction" analyzes the connotation and extension of the "newgeneration international investment agreement" on the basis of combing the background of the era and the development of the rules.Afterwards,on the basis of domestic and foreign rules research,this thesis comprehensively keeps to the ISDS reform research under the new generation of international investment agreements,sums up the experiences and problems in the research,demonstrates the significance of the research,and determine the research methods.Chapter 2,introduces the research foundation of this study,namely the ISDS legitimate crisis.The second chapter begins with the development process and main characteristics of ISDS,and summarizes the reasons for the ISDS legitimate crisis.Afterwards,according to the theoretical research of international investment law,the negotiation practice of investment agreements among various countries,and investment arbitration practices,the theoretical response and practical response of the ISDS justice crisis are respectively summarized.On the basis of understanding various theoretical tools,the ISDS mechanism in the most representative new generation of international investment agreements is studied individually,and the ISDS mechanism of the new generation of international investment agreements is integrated from the perspective of mechanism and the perspective of roles.Chapter 3,“New-Generation International Investment Agreement ISDS Reform: from the Mechanism Perspective”,talks about the new-generation international investment agreements,Investment Court System,the Appeal Mechanism in ISDS,the ISDS Multilateral Dispute Resolution Mechanism,the ISDS Transparency Rules,ISDS prevention method for frivolous suit Programs and ADR.Chapter 4,“The New-Generation International Investment Agreements ISDS Reform: from the Perspectives of Specific Roles in ISDS”,focuses on the four kinds of parties to the International Investment Agreement Regime,the ISDS arbitrators,the host country and the investor.These researches may reflect the theory tools and positons of the roles in the system.Chapter 5,"China's ISDS policy reform paradigm," will explore China's position and strategy in investment treaty negotiation practices at both a technical and strategic level.China can systematize jurisdictional adjudication rules,enhance the predictability of jurisdiction,and protect the anticipatory interests of foreign investors.In addition,China can continue to use the ISDS rules to enrich the connotation of legitimacy and enhance ISDS's vitality.Finally,China can continue to make efforts to ensure the correctness of the ISDS decision,with serious consideration on the appeal mechanism,and find the-best-for-its-own position in the ISDS multilateralization.Chapter 6,"Conclusion",summarizes this study.The development and revision process of the new-generation international investment agreements reflect the characteristics of the transition period of the international investment agreement rules.The content of the substantive clauses has been continuously refined and the structure has gradually been improved.The investment court system has gradually emerged to be a key topic in ISDS reform.And it would develop towards the protection of the host country's regulatory rights and multilateralism.At present,China is actively promoting the “Belt and Road” initiative,increasing the investment of countries along the “Belt and Road” initiative,and supporting the Asian Infrastructure Investment Bank to carry out financial cooperation with the countries in the region.At the same time,the China-led RCEP negotiations,China-EU BIT negotiations and China-United States BIT negotiations are also gradually advancing.China is now in a great period in which there are significant strategic opportunities for international investment rules.China should follow the development trend of international rules in the negotiation of regional investment agreements,continue to support the governance of multilateral rules,continuously enrich rule of law in substantive investment rules with reference to the latest development and achievements of the international investment agreement rule making.And China should explore institutional innovation,such as investment courts,at the procedural level to create a stable and fair investment platform and business environment.Moreover,keeping strong voices in the process of rule-making is also a basic requirement for the construction of the “Belt and Road” initiative.