Research On The Investor-State Dispute Settlement In Comprehensive Economic And Trade Agreement

Nowdays the global economy integration is getting stronger and stronger.The capital increasingly flows around the world.Because of this,the international investment rules and protection rules are constantly updating and evolving.EU-Canada Summit was held in the capital city of Canada on Sptember 26th,2014.Both sides announced that the "Comprehensive Economic and trade agreement"(CETA)negotiations successfully concluded and published the full text of the CETA agreement.The Investor-State dispute settlement(ISDS)mechanism,which is stipulated by the CETA investment section,is an very important issue in the process of negotiation.As a model in TTIP negotiation,the ISDS mechanism still becomes to an important issue in the process of TTIP negotiation now.Investor state dispute settlement mechanism is quite a great inovation in modern international investment dispute settlement system,it is transplanted from the traditional international commercial arbitration.But it has significant difference from the traditional international commercial arbitration in the aspect of "applicant and respondent" "the basis of claim" and "the dispute matters".The ISDS mechanism endows private citizen the right of directly sue the other party of investment protection treaty in a international arbitral tribunal,which provides protection for the investor.The vast majority of bilateral investment protection agreements and free trade agreements have the provisions of ISDS mechanism in their investment chapter.The ISDS mechanism has got not only many achievements but also deficiency in almost 60 years.This article starts from the historical evolution of the investment dispute settlement mechanism and then introduces the predominant investment dispute settlement mechanism in the world.On the basis of the practice of the ISDS mechanism,this paper expounds its main problems.Finally,this paper focuses on the ISDS mechanism in the investment section in CETA,which best presents the highest level of promotion in ISDS mechanism.Then this article describes some important innovations of ISDS mechanism in the following ten aspects:most favored nation treatment is no longer applicable to procedural rules;the restriction of the scope of arbitration;the pursuit of effectiveness of consultation and mediation system;avoiding the parallel program;innovation on the formation of the arbitration tribunal and the requirements of selection of arbitrators;establishment of two procedural of preventing the abuse of claim rights;Enhancing the temporary measures for better jurisdiction;efforts to improve the transparency of the arbitration proceedings;further refinement of the final award;detailed provisions of avoiding the repeated litigation proceedings.This paper compares with the existing high standards of investment protection treaty system,closely tracking the challenge and innovation the mechanism is facing in the European Union and the world’s major economies,in order to promoting China’s international investment treaties and arbitration practice.This paper is divided into four chapters,the main contents are as follows:The first chapter mainly introduces several basic issues of the international investment dispute settlement mechanism.The international investment dispute settlement mechanism is divided into two types of countries and investor-state.In the investor-state part,it studies the history of ISDS and how it works.Then it introduces three main solutions which are the EU’s judicial mechanism,ICSID’s arbitration mechanism and NAFTA’s mixed solution mechanism.At last it introduces the latest development of the investment dispute settlement mechanism which are the"transparency rules" and ISDS mechanism in the investment of "TPP agreement" and international investment court system proposed by European Commission。The second chapter mainly introduces the major contents of investor-state dispute settlement mechanism of CETA.First of all,this paper introduces the CETA’s reaching process.Then,the paper introduces the main methods of ISDS mechanism in CETA and analyzes the advantages and disadvantages of using mixed model.The third chapter mainly introduces the main innovation of ISDS mechanism in CETA.At first,this paper introduces the change in conception of CETA,then it compares with the other high standard investment agreements in ISDS,and elaborate the improvements in ISDS mechanism of CETA according to the existed practice.The fourth chapter mainly introduces the main challenges of the ISDS mechanism of CETA and the inspiration to our country.The paper cites the latest data to explain the main reasons why people criticaized the ISDS mechanism in practice,and then introduced the status of ISDS mechanism in the EU and other major economies.At last,this paper reveals the secrets behind the arguments of ISDS mechanism,and puts forward some suggestions for the practice of the contracting and arbitration in our country.