Research On Substantive Issues In The Legitimacy Crisis Of International Investment Arbitration

Since the 1990 s,the legitimacy crisis of international investment arbitration has become more and more prominent.In this regard,the international community has generally recognized and put forward a variety of solutions.However,not only are there major differences in these plans,but they have generally not addressed the deeper issue of "substantive" reform.The author thinks that the legitimacy crisis of international investment arbitration is mainly a procedural problem,but the underlying cause is the imbalance of entity interests.Therefore,as far as the settlement of the "legitimacy crisis" of international investment arbitration is concerned,it is necessary to examine the substantive issues,explore the dimension of the balance of the substantive interests,and explore the path to achieve the balance of the substantive interests.Therefore,this paper takes "the entity problem in the settlement of the legitimacy crisis of international investment arbitration" as the research topic,which is divided into six parts besides the introduction.The first part is the origin of the legitimacy crisis of international investment arbitration.In recent years,issues such as inconsistent awards,regulatory chills and excessively high arbitration costs in international investment arbitration have become the main features of the legitimacy crisis in international investment arbitration,the main reasons are the expansion and dispersion of international investment arbitration jurisdiction,the lack of accountability mechanism of investment arbitration tribunal and the imbalance of entity interests.Among them,the imbalance between the interests of the state and the interests of investors,public interests and private interests is the important cause of the legitimacy crisis of international investment arbitration,we should fully recognize the importance and fundamental significance of entity issues in international investment arbitration,analyze them one by one and come up with solutions to entity issues.The second part is the breakthrough of the substantive issues to the settlement of the legitimacy crisis of international investment arbitration.The legitimacy crisis of international investment arbitration has been widely concerned by the theoretical and practical circles for a long time.The existing research is more focused on the optimization and reform of the procedural rules,to a certain extent,it can amend the international investment arbitration system.However,if international investment arbitration is to get rid of the problem of legitimacy,the crux of the substantive issue must be taken seriously.In essence,to further resolve the legitimacy crisis of international investment arbitration,we should start with such substantive issues as state sovereignty,national security,environmental protection,human rights protection and treaty interpretation,balancing the interests of entities in international investment arbitration and seeking deeper solutions.The third part is the balance of "national interest-investor interest" insettlement of the legitimacy crisis of international investment arbitration.This part mainly from the protection of national sovereignty and national security issues proceed.As far as the protection of state sovereignty is concerned,a series of international investment arbitration practices since the1990 s have gradually broken the moderate international investment arbitration system established by the Convention on the settlement of investment disputes between states and nationals of other states,it has formed the diversified development trend of international investment arbitration.The current international investment law is too biased towards the interests of investors,which increases the obligations and risks of the host country,and thus challenges and impacts the national sovereignty.In this regard,it is necessary to arouse attention and be corrected.As for the protection of national security,the right to protect the fundamental security interests of states as an exception to treaty commitments has been established in treaty practice,but its practical effect is not satisfactory.This section takes a sample of four cases from Argentina’s response to the economic crisis of 2000-2002 in the first wave of arbitral awards submitted to the ICSID Arbitral Tribunal,to examine the core concerns of national security issues in international investment arbitration.The fourth part is the balance of "public interest-private interest" in the settlement of the legitimacy crisis of international investment arbitration.This part starts with the balance between environmental protection and investors’ interests and the balance between human rights protection and investors’ interests.One is the balance between environmental protection and the interests of investors.With the strengthening of environmental protection consciousness,the conflicts between the interests of investors and the interests of public environment are no longer rare.How to balance the two is a difficult problem.This part starts with the practice of international investment arbitration,Combs the cases of conflicts of interests between investors and public environment,analyzes the conflicts and discusses how to solve them harmoniously.Second,the issue of human rights.In some cases,measures taken by host countries to protect human rights could affect the interests of investors and lead to international investment arbitration.This part elaborates on the protection of human rights of the host country in international investment arbitration.Firstly,the relationship and interaction between human rights law and international investment law are discussed It then proceeds from the conflict between the host country’s human rights obligations and its investment protection obligations and the host country’s human rights claims in international investment arbitration,this paper discusses the plight and causes of the host country’s human rights protection in international investment arbitration Then it discusses the possibility of applying human rights law in international investment arbitration from two aspects: human rights law as applicable law and NGO as amicus curiae Finally,how to improve the protection of host country’s human rights in international investment arbitration is discussed.The fifth part,the realization path of the substantive balance to resolve the international investment legitimacy crisis--to enhance the accuracy of treaty interpretation as an example.The crisis of legitimacy faced by the investor-state dispute settlement mechanism is invariably related to the interpretation of international investment treaties by arbitral tribunals.The interpretation of investment treaties by arbitral tribunals when dealing with investment disputes is somewhat influenced by different factors.The different educational backgrounds and values of the arbitrators make it impossible for them to reach an agreement on the same investment treaty provisions,and thus lead to conflicts in treaty interpretation.This part starts with the general theory of Treaty Interpretation in international law and discusses the particularity of treaty interpretation in international investment arbitration Through the analysis of a large number of cases to find the arbitral tribunal in the interpretation of the treaty and the reasons for the existence of the corresponding solution.The last part is China’s response to the substantive issues in the legitimacy crisis of international investment arbitration.From China’s current investment pattern,as a two-way investment power,China has a high-risk international investment structure.In recent years,the epidemic situation in the ST century and the changes in the last century are interwoven.In the long future,no matter for China to attract foreign investment or Chinese enterprises to invest abroad,it will be a high-risk period.On the basis of a correct understanding of China’s investment pattern,we should examine the contradictions between "national interest-investor interest" and "public interest-private interest" in an all-round way,and establish the yardstick of balance.