| International investment is the most important form of activity in international economic exchanges.In the past thirty years,international investment,especially Foreign Direct Investment,has increased rapidly worldwide.As the second largest economy in the world,China is not only a big foreign investment home country,but also a hot investment destination in the world.“The Belt and Road” has always been an important economic and trade cooperation region of China for a long time.There are a lot of motivations for investors to invest in foreign countries.For instance,factories are set up in areas where labor and raw materials are cheap to reduce production costs and improve their competitiveness,or setting up a subsidiary in a foreign country in order to enhance its sales capacity and reduce foreign exchange risk,etc.In addition to the general commercial risk,investors in the host country is faced with political risk investment.Such as nationalization,expropriation,prohibition of remittance,war risk,etc.For countries along “The Belt and Road”,participation in “The Belt and Road” regional cooperation and joining “The Belt and Road” initiative is to attract foreign investment to promote domestic economic growth.As far as host country is concerned,attracting foreign investment can achieve effective allocation of resources,increase employment and foreign exchange earnings;on the other hand,foreign investment may also affect the government's control of national economy and the development of its national economy.Therefore,the interest relationship between foreign investors and the host country is a win-win cooperation,and also conflict.The former is international cooperation,and the latter is often shown as an international investment dispute.Under “The Belt and Road” initiative,China's investment to countries along the region is unprecedented in both scale and quantity.In particular,infrastructure construction projects are the focus of investment in order to achieve “interconnection” within the region.At the same time as the scale of investment has expanded,it has also been accompanied by an increase in investment disputes.Whether the investment dispute can be effectively solved and whether the investment interest can be effectively relieved will affect the success or failure of Chinese enterprises' foreign investment.Unlike disputes between equal business entities,international investment disputes often involve two different legal status entities-the investor and the host country.One is private and another is a sovereign state.Investment disputes are also related to complex legal and political issues such as the host government's management and control of foreign capital and even the sovereignty of the host country.At present,the major international investment dispute settlement mechanism is dominated by traditional developed countries,over-emphasizing the protection for investors.From institutional design to program construction,there is a bias towards investors in developed countries.The investment legal environment in the countries along “The Belt and Road” reflects the complexity and particularity.It is difficult to protect the public interest of the country by applying the existing investment dispute settlement mechanism,and it may even affect the exercise of these countries' sovereignty.Therefore,in “The Belt and Road” investor-state dispute settlement mechanism,how to balance the right to control foreign investment of host country and investor protection is an urgent problem to be solved.Besides the introduction,the dissertation is divided into five chapters.Chapter 1 “‘The Belt and Road' and International Investment Disputes Settlement Mechanism”.The first part is an overview of the international investment dispute settlement mechanism and the analysis of requirements for the investment dispute settlement mechanism under “The Belt and Road” initiative.First,it clearly defines and classifies the international investment,international investment disputes and international investment dispute settlement methods.To clarify the historical context and development trend of the investment dispute settlement mechanism,it is considered that the investor-state dispute settlement mechanism is the most important form of the current international investment dispute settlement mechanism,and it is also the main research object of this paper.At present,the international investment dispute settlement mechanism is facing new challenges.In this context,this chapter points out the occurrence of investment disputes is different from that of other regions and countries under the strategic background of “The Belt and Road” Initiative.The degree and frequency of investment risks along “The Belt and Road” are far superior to those of other countries and regions.Firstly,the foreign investment of countries along “The Belt and Road” is mostly concentrated on infrastructure construction projects.Due to the particularity of the industry along “The Belt and Road”,investors would face higher non-commercial risks and lack of hedging capabilities in the infrastructure construction.Second,the geopolitical environment along “The Belt and Road” is complex.On the one hand,countries along “The Belt and Road” have been externally intervened by superpower.“The Belt and Road” initiative covers a wide area and spans Asia and Europe.It is strategically located.On the other hand,the instability of the political situation in the countries along “The Belt and Road” has also led to a surge in investment disputes,and investment needs to be guaranteed.Third,the investment legal environment in the countries along “The Belt and Road” is complicated.The construction of “The Belt and Road” Initiative do not form a unified regional investment rule.The bilateral investment agreements,regional investment arrangements and multilateral investment rules that countries participated in formed a complex system.Moreover,because the legal systems of countries along “The Belt and Road” have different characteristics and the investment rules are not completely consistent,which will lead investors to fail to invest because of the lack of specific understanding of the host country's investment in the rule of law.In addition,except for a very small number of countries,the rule of law in the countries along “The Belt and Road” is generally inadequate so that the domestic rule of law for investment is not good.Also,these countries' the rule of law credit are poor,which has a negative impact on the smooth progress of investment and the protection of investors' interests.The fundamental purpose of constructing “The Belt and Road” investment dispute settlement mechanism is to resolve investment disputes effectively and create a favorable investment legal environment.The construction of “The Belt and Road” investment dispute settlement mechanism must rely on existing bilateral,regional and multilateral investment dispute settlement mechanisms.“The Belt and Road” investment dispute settlement mechanism here is not only a regional investment dispute settlement mechanism,but also the sum of all kinds of investment dispute settlement mechanisms that can solve investment disputes effectively and improve investment legal environment along “The Belt and Road”.On this basis,the requirements of “The Belt and Road” Initiative for investment dispute settlement need to build an investment dispute settlement mechanism which is in line with international investment dispute settlement mechanism development trend,based on the protection of investors' interests,fully consider the national conditions of the developing countries along “The Belt and Road” and conforms to a fair and reasonable new international order.Chapter 2 “‘The Belt and Road' Bilateral Investment Disputes Settlement Mechanism”.The second chapter analyzes the existing bilateral investment dispute settlement mechanisms along “The Belt and Road”.It sorted out the bilateral investment agreements signed between China and the countries along “The Belt and Road” and analyzed and clarified the relevant provisions on dispute settlement between investors and host countries.The current provisions of “The Belt and Road” bilateral investment agreement on investment dispute settlement provisions are the most important investment dispute settlement mechanism along “The Belt and Road” and an important rule of law guarantee for dispute settlement between investors and host countries.Because China has signed bilateral investment agreements with most countries along “The Belt and Road”,it has a wide range of advantages.Although the provisions of the agreements on investment dispute settlement mechanisms are not the same,they are similar,which also facilitates the elaboration of China's provisions in the investment dispute settlement mechanism.Through the analysis of the relevant provisions on dispute settlement between investors and host countries in the bilateral investment agreements signed between China and the countries along “The Belt and Road”,this paper believes that the current “The Belt and Road” bilateral investment dispute settlement mechanism has some problems such as serious system fragmentation,scope of arbitration is unclear and the law is not applicable.China has become a major investment home country now,and also the largest investment destination in the world.In the process of legalization of “The Belt and Road” Initiative,China should change its identity and actively promote the signing and revision of bilateral investment agreements with countries along “The Belt and Road” initiative.China should encourage the application of friendly dispute settlement methods when perfecting “The Belt and Road” bilateral investment dispute settlement mechanism,carefully consider the use of local remedies,respect the host country's domestic laws,stipulate the “significant security exceptions” clause and clarify the application of the investment dispute settlement mechanism.Chapter 3 “‘The Belt and Road' Regional Investment Disputes Settlement Mechanism”.The third chapter analyzes the existing regional investment dispute settlement mechanism along “The Belt and Road”.At present,regional integrated international organizations are distributed among the countries along “The Belt and Road”,and a number of regional agreements have also been formed.Among them,there exists ASEAN,China-ASEAN Free Trade Area,Shanghai Cooperation Organization,Eurasian Economic Union,EU,Arab League,China-Arab Cooperation Forum,South Asian Alliance and other regional integrated international organizations and free trade zones.These organizations or trade zone is not only a political regional arrangement but also an economic cooperation arrangement,which has an important impact on the economic policies and investment environment of each of its internal countries.The regional rules set by these organizations are set in the context of the reconstruction of the international economic order,and are an important part of the current international economic governance system.Among the countries along “The Belt and Road”,regional agreements play an active role in region and “The Belt and Road”,and even the world economy.The provisions of the investment dispute settlement mechanism between investors and host countries of these regional economic arrangements are different.This chapter classifies the investment dispute settlement mechanism of important regional economic organizations along “The Belt and Road”.Some organizations' investment dispute settlement mechanisms are mainly based on negotiation,such as the South Asian Union and the Shanghai Cooperation Organization.Some are mainly arbitration.For example,the CAFTA investment dispute settlement mechanism.And some organizations provide for a highly judicial investment dispute settlement mechanism,such as the Arab League,the European Union.The existing regional investment dispute settlement mechanism along “The Belt and Road” presents the characteristics of concern for the public interest and development rights of the host country,and the transparency and impartiality of procedures and rulings.At present,“The Belt and Road” regional investment dispute settlement mechanism has problems includes the inefficiency of implementation,the expansion of jurisdiction,the inconsistency of arbitral awards,and the unclear application of laws.“The Belt and Road” involves many regional organizations.Each regional organization does not cover all countries along “The Belt and Road”.China has only participated in CAFTA,and China's cooperation with South Asian Union and China and Arab countries is just beginning.Therefore,the improvement of the regional investment dispute settlement mechanism needs the promotion and efforts of the each member state.China can bring China's successful experience to countries along the route through cooperation forums and cultural exchanges under “The Belt and Road” initiative,and promote the use of the Chinese model and the development of investment disputes among countries and regional organizations along the route.As far as “The Belt and Road” regional investment dispute settlement mechanism is concerned,China can propose reform proposals from the following important aspects.The first is to clarify the jurisdictional provisions.The second is to promote the construction of an appeal mechanism.The third is to improve the system of expert selection.And the fourth is to clarify the application of the law.Chapter 4 “‘The Belt and Road' Multilateral Investment Disputes Settlement Mechanism”.The fourth chapter analyzes multilateral investment dispute settlement mechanism along “The Belt and Road”.The ICSID Investment Dispute Settlement Mechanism is the only multilateral investment dispute settlement mechanism along “The Belt and Road” that specifically addresses investment disputes between investors and host countries.It is also the most important investment dispute settlement mechanism along the line and even in the world.Before there is formed a unified investment dispute settlement mechanism along “The Belt and Road”,the ICSID investment dispute settlement mechanism will continue to play an important role in the investment dispute solution,and serving the construction of “The Belt and Road” initiative.ICSID has characteristics different from other institutions.First,the award made by the ICSID arbitral tribunal has a mandatory effect,which is conducive to the recognition and smooth implementation of the award.Second,it gives the dispute parties the right to initiate arbitration,so that the investment dispute can be resolved more fairly and reasonably.The third is to clarify the application of the law.In addition to respecting the autonomy of the dispute parties,it also provides the possibility of applying the domestic laws of the host country.As the most frequently used and most important investor-host dispute settlement mechanism in the world,ICSID is more advantageous than the traditional settlement methods.But the Washington Convention has been signed for a long time,there are some issues that do not fit the “The Belt and Road” initiative.First,the problem of excessive partiality of investors,the balance of rights and responsibilities between the host country and investors remains to be resolved;the second is the continuous expansion of jurisdiction,contrary to the provisions of the Washington Convention on right of disputes parties to choose investment dispute settlement mechanisms by themselves.Third,there is a lack of appeal mechanism and the relief supervision mechanism is incomplete.ICSID has initiated a new round of rule revisions aimed at providing more effective and effective investment dispute settlement methods,achieving security guarantees for international investment,and improving the predictability of international investment rules.China should actively participate in this revision.In view of the above problems,this paper draws on the successful experience and lessons from the shortcomings.It makes some suggestions such as restricting the expansion of jurisdiction,paying attention to the balance between the public interest of the host country and the private interests of investors,improving the selection and behavior criteria of arbitrators and mediators,and establishing an appeal mechanism.As the proponents and important participants of “The Belt and Road” Initiative and the world's largest developing country,China is more aware of the demands and interests of the countries along the “Belt and Road” and the developing countries in the investment dispute settlement mechanism than other countries in the region.Therefore,the reform plan proposed by China is not only the China's position,but also a concentrated reflection of the interests of countries along “The Belt and Road” and the vast number of developing countries.Chapter 5 “Construction of ‘The Belt and Road' Investment Disputes Settlement Mechanism”.The fifth chapter is the construction of “The Belt and Road” investment dispute settlement mechanism.In view of the fact that the existing investment dispute settlement mechanism along “The Belt and Road” is difficult to resolve the investment disputes effectively,it is urgent to further improve the existing investment dispute settlement mechanism.Based on the improvement of the existing bilateral,regional and multilateral investment dispute settlement mechanisms along “The Belt and Road”,this chapter proposes that the best solution to “The Belt and Road” investment dispute is to build a diversified “The Belt and Road” investment dispute settlement mechanism.The construction of “The Belt and Road” investment dispute settlement mechanism must rely on existing investment dispute settlement mechanisms and coordinate various investment legal resources along “The Belt and Road” in order to settle investment disputes effectively and create a good investment legal environment.This chapter puts forward the basic principles of constructing “The Belt and Road” investment dispute settlement mechanism.It must adhere to the principles of fairness and reasonableness,the principle of sharing and sharing,and the principle of diversification of dispute settlement methods.At the same time,this chapter also puts forward the basic idea about constructing “The Belt and Road” investment dispute settlement mechanism.It must conform to the holistic requirement of the reform of the existing investment dispute settlement mechanism along “The Belt and Road” and believes that “The Belt and Road” investment dispute settlement mechanism needs to establish a permanent structure.Introducing the investment dispute early warning mechanism for risk management and control is also an important way to create a good investment environment and improve the investment rule of law.The specific rules of “The Belt and Road” investment dispute settlement mechanism need to be more inclusive and flexible,and seek common ground while reserving differences.The most important thing is to realize the coordination and integration of the existing investment dispute settlement mechanism and investment legal resources and the interaction between the international and domestic rule of law,promoting the multi-integration of investment rules and investment dispute settlement mechanisms.“The Belt and Road” investment dispute settlement mechanism should be a comprehensive cooperation system that serves “The Belt and Road” investment disputes settlement.The fundamental purpose of construction “The Belt and Road” investment dispute settlement mechanism is to solve the investment disputes effectively,create a favorable investment legal environment,and promote the continuous development of rule of law along “The Belt and Road”.On the one hand,in the long run,it is not entirely impossible to form a unified investment dispute settlement mechanism within a large regional scope under the existing framework of the AIIB.On the other hand,building a unified investment dispute settlement mechanism is a long-term plan that faces enormous difficulties and cannot be formed in a short time.Therefore,when “The Belt and Road” continuation does not form a unified investment dispute settlement rule,the best solution for constructing “The Belt and Road” investment dispute settlement mechanism is to build an innovative cooperation platform to coordinate existing investment dispute settlement mechanisms and investment legal resources along the line.Integrate diversified investment dispute settlement methods to form a “one-stop” investment dispute settlement platform for mediation,arbitration and litigation. |
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