| Investor-State Dispute Settlement(ISDS)neglected nature of public law at its initial design.In the meantime,as verdicts were seriously inconsistent,it did not form an effective institutional constraint on the fair adjudication of cases.ISDS reform is imperative.The establishment of the appeal mechanism of ISDS will solve the above problems.The ISDS appellate body shall be standing and have certain judicial nature.Its structural design shall be combined with the parties' autonomy,openness,flexibility and the nature of public law,prescriptiveness and stability of a permanent judicial institution.The establishment of the ISDS appellate mechanism can draw on the optional path of the Mauritius Convention,and build an appellate body by multilateral treaty and accept the jurisdiction by bilateral treaties to maximize the acceptability and uniformity of the mechanism.The functions of the ISDS appellate mechanism will compensate for the lack of public law in ISDS.To be specific,such compensation include the following five points: First,the appellate mechanism will respond to the changes in the status of public law in the investment dispute settlement;second,the appellate mechanism will match the publicprivate hybrid nature of ISDS.Third,the appellate mechanism will strengthen the interpretation of the comparative public law of ISDS.Fourth,the appellate mechanism and compliance review will value the public law.Fifth,the integration of the appellate mechanism and the purpose of governance of investment public law has a dual role in promoting the international and domestic rule of law.In addition,the appellate mechanism will promote the consistency of ISDS decisions.The function of reviewing arbitral awards,the influence of the nature of the appellate mechanism on arbitral tribunals,and the restriction on the losseness of the ISDS mechanism will promote the uniform application of law.The establishment of the ISDS appellate mechanism is feasible.The theoretical obstacles,practical obstacles,and institutional obstacles faced by such mechanism can be overcome.Firstly,the theoretical barriers to the ISDS appellate mechanism can be got over.The relationship between the uniform substantive law and the ISDS appellate mechanism is not one-dimensional and sequential.The lack of uniform substantive law on investment does not affect the establishment of institutional structures and procedural rules.The appellate mechanism will promote the progress of the formation of uniform substantive law in the practice.Besides,the finality of arbitration is not the primary pursuit and absolute principle of international investment arbitration.Based on the special nature of ISDS which is different from that of traditional commercial arbitration,the prioritization of legitimacy,and the precedents of domestic and international arbitration appellate mechanisms,the appellate mechanism has the theoretical basis tobreak through the final decision.Secondly,the practical obstacles for the ISDS appellate mechanism can be overcome.Investment law is undergoing a wide range of systematic and institutional structural transformations and its content keeps changing.There are differences and conflicts among developing countries,developed countries,investors and non-governmental organizations in terms of interest values and claims,and interest considerations are gradually becoming more complex.The multiplexing provides realistic possibilities for the establishment of an appellate mechanism.Although the USMCA dramatically restricts the scope of ISDS,and the U.S.would take USMCA as a model to negotiate with other countries or areas which may bring about more tension to international investment disputes settlement,a balanced and effective appellate mechanism will potentially affect the choice of dispute settlement method and serve as an effective way for ISDS reform.Thirdly,the institutional obstacles of the ISDS appellate mechanism can be overcome.The understanding or memorandum to establish an appellate mechanism can be formed under a multilateral framework.But accepting appellate review is a case-by-case option to contracting countries.According to the Article 41 of the Vienna Convention,the establishment of an appellate mechanism based on the ICSID has the institutional,normative and institutional triple convenience.The institutional arrangements for the tribunal members,schedules and cost of ISDS appellate mechanism should be conducive to the function of the appellate function.In the setting of rules,it is necessary to master the balance between the autonomy of the parties on the agreement of procedures and rules and the centralized control of judicial mechanisms of the appellate mechanism to minimize the cost of time and fees.The first is the arbitral tribunal of the appellate mechanism.There should be permanent arbitral tribunals and permanent arbitral tribunal members.The arbitrators should have the qualifications to serve as “the highest judicial officials in the country” and have expertise in law and international investment and international investment treaties.The permanent arbitrators should have different and higher standards of ethics that contain public interests.Economic incentives should be combined with fixed basic appointment costs and floating case processing fees to provide guarantees for arbitrators to fairly perform their duties.The next is the time control of the appellate mechanism.The ways are: to narrow down the time for selecting the arbitrator stage,to limit the time and criteria for challenging arbitrators,to control the time for formal arbitration proceedings,to identify and increase the criteria for extending the trial period,determine the end-of-procedure node,and limit the deadline for awarding.The next is the cost sharing of the appellate mechanism.First,through the optimization of procedural rules,restrictions should be formed for the parties not to delay by using the ISDS appellate mechanism.The second is through the sharing of costs to realize the program's self-limitation with the actual cost.For some developing countries or underdeveloped countries,the reduction of the costs of litigation,or a grace period can be considered.The procedural design of the appellate mechanism should provide continuous and consistent institutional support for the rule adjudication.The appellate procedure design needs to consider the contest and balance among public and private law,autonomy of the will of parities and judicial power,fairness and efficiency.Before entering the formal appellate procedure,the case should be filed for formal examination.The scope of the trial should include factual review and be limited to serious factual errors rather than a full factual review.The legal review of the appellate mechanism should be limited to obvious legal errors,and it also should be limited to the errors of law application for the application of a legal interpretation.The appellate tribunal should maintain,revoke and revise the first-instance ruling,but it does not have the right to remand for retrial.The institutional functions that are intended to be remanded by the retrial can be compensated by giving the power of review to the appellate mechanism.The decision made by the appellate mechanism should be the final adjudication,and it is also the final effectiveness basis of the implementation.Finally,the appellate mechanism should replace the annulment for those who accept appellate mechanism.The scope of an appellate mechanism will cover the function of the annulment.And the cancellation of annulment will offset the time and cost for adding an appellate mechanism.There are very few bilateral and regional agreements involving the ISDS appeal mechanism in China,and only a general description of the appeal mechanism is made,and no specific arrangements are involved.It is foreseeable that the appeal mechanism will be more involved in future negotiations.In response to the U.S.signing of the USMCA agreement with Mexico and Canada and attempting to use this most widely covered trade agreement as a template for future bilateral trade negotiations,reshaping international investment and trade rules and excluding China,China must change its past unanimous wait-and-see attitude of developing countries and quickly choose a breakthrough that has not yet been blocked by the United States,and keep the room and space for avoiding manoeuvre(that)will be rapidly compressed.The appeal mechanism is also an important topic for international organizations such as UNCITRAL,CIDS,and OECD to discuss ISDS reform.The relevant countries have put forward the positive and open opinions and attitudes of ISDS and its appeal mechanism,which provides an important reference and support for China to choose the dispute resolution rules.China has the space and opportunities to continue to develop,accept and use the appeal mechanism to lead regional investment rules and break through theUS-intentioned investment dispute resolution rules.China should continue to actively participate in the formulation of ISDS and its appeal rules,and actively participate in the research and discussion of ISDS and its appeal mechanism.Under the current situation,the Asia-Pacific region and the United States have not yet focused on the areas covered by the USMCA model negotiations.China should accelerate its efforts as the leading role of the Belt and Road Initiative for Regional Investment Dispute Resolution to take the lead in the unoccupied land.It is true that China does not rule out other paths in practice to achieve the guidance of the “Belt and Road” regional dispute resolution method,while China takes the “Belt and Road” region as the entry point and leads the investment dispute settlement rules with the ISDS appeal mechanism.It is one of the most important methods to seek the way out from American-led investment rules and its intention to exclude China.China can increase the power of international rules governing discourse by participating in the formulation of the rules of the appeal mechanism,leading the further development of the investment dispute settlement mechanism,and responding to the major changes in the international investment rules dominated by the United States with a more positive attitude.Certainly,the paper does not intend to propose a perfect mechanism to solve all the problems of ISDS,and also acknowledges that the mechanism will cause some accompanying problems.In fact,the establishment of any mechanism will face such doubts.The paper intends to propose an alternative path for ISDS reform and outlines a preliminary roadmap for how to make progress on the path. |
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