Research On The United Nations Convention On Transparency In Treaty-based Investor-State Arbitration

Transparency rules in the field of international investment have seen constant development over the recent years,and the connotations have become increasingly rich.United Nations Commission on International Trade Law have promulgated two representative documents in this field—"Rules on Transparency in Treaty-based Investor-State Arbitration"(Hereinafter referred to as the "Transparency Rules")and "United Nations Convention on Transparency in Treaty-based Investor-state Arbitration"(hereinafter referred to as "Transparency Convention"),which have helped the establishment of a high standard of transparency rules framework in the arbitration procedure for international investment treaties.The two documents have initiated the substantive reform of international investment arbitration transparency.This thesis mainly discusses the major implications of the Transparency.Convention by examining the background and content of the document,then moves to the the question whether China should enter the Transparency Convention,and finally proposes concrete suggestions to be taken in the reform of the transparency issue in international investment arbitration.The structure of this thesis is as follows.The first Chapter of this thesis is introduction.In this part,the research background and research significance of the Transparency Conventions are introduced.The existing academic achievements at home and abroad are discussed,and the research method adopted in the thesis is pointed out.The second Chapter studies the background of the Transparency Convention from three aspects.Firstly,the fundamental cause of the formulation of the Transparency Convention was to make up for the legitimacy of the current international investment arbitration mechanism.The lack of legitimacy in the international investment arbitration is mainly manifested in the inconsistency of the arbitration award and the lack of predictability,inadequate protection of the public interest and the drawbacks of the investment arbitration secrecy.To defuse the existing investment arbitration crisis,the improvement of the transparency in the arbitral proceedings is urgently needed.Secondly,the enactment of the Transparency Convention is inseparable from the development of the theory of transparency rules in international investment arbitration.Since the limitation of the Transparency Rules makes the direct cause of the Transparency Convention,the formulation of Transparency Rules is therefore used as a dividing line in this thesis.The theoretical norms before the publication of the "transparency rules" are organized and presented first,then the Transparency Rules is analyzed.Finally,by demonstrating with two cases,this thesis argues that the transparency rules in the current practice of international investment arbitration are ignored,thus there is critical need for the enhancement of the applicability of transparency,which also one of the reasons behind the formulation of Transparency Convention.Chapter Three focuses on the analysis and evaluation of the content of the Transparency Convention including the scope of application,the way of application,and related reservations.Through the analysis of the content,the author summarizes the value of the Convention,pointing out its supplementary role to the applicability of the Transparency Rules and its contribution to the reform of the international arbitration system.Chapter Four examines the impact of the Transparency Convention upon the amendment of the rules in relevant international arbitration institutions.In accordance with the Convention,the Transparency Rules may apply to arbitration rules of any arbitration body,thus the Convention promotes the revision of rules by the relevant international arbitration bodies in order to increase transparency.Recent rules established by the International Chamber of Commerce(ICC),the Singapore International Arbitration Center(SIAC),the Stockholm Chamber of Commerce Arbitration Institute(SCC),etc.all reflect the enhanced transparency of the arbitral proceedings.This thesis provides explanations concerning transparency-related contents using the research method of comparative analysis.The last Chapter of this thesis focuses on the impact of the Transparency Convention on China.This Chapter analyzes the feasibility of China’s accession to the Transparency Convention.After weighing up the pros and cons,the author believes that the choice of accession to the Transparency Convention does more good than harm for China.The change in China’s attitudes towards the transparency reform in international investment arbitration and China’s current practice in the field of investment arbitration are the factors that China needs to consider in deciding to ratify the Transparency Convention.The "Shenzhen Court of International Arbitration Rules",which was implemented since December 1 2016,for the first time expanded the scope of arbitration to the investment disputes between investors and the host country,reflecting the impact of the Transparency Convention on China’s arbitration body on the amendments of rules.Transparency Convention will bring great challenges to China.To deal with the situation,China should adopt’ a series of effective measures such as putting emphasis on the exceptions to transparency,improving third party participation mechanism,limiting the application scope of MFN Clause,and promoting the process of domestic legislation on transparency issue.In order to coordinate with the international investment legal system as soon as possible,the revision of the China Arbitration Law is expected.