| Economic globalization lead international investment and international trade to have a significant impact on the human rights situation in various countries,labor rights as a kind of human rights at work have also received the attention of the international community.The relationship between labor rights and international investment is mutual,on the one hand,some irresponsible international investment has brought damage to international labor rights,but at the same time international investment has also led the international community to pay more attention to the labor rights associated with investment,to encourage various countries to participate in the improvement of labor standards and the protection of labor rights.On the other hand,the raise of labor protection standards has increased the cost of international investment,which has added obstacles to the cooperation of all countries and brought about new investment risks-labor risks.But at the same time we should also see that the emphasis on labor rights has also contributed to the sustainable development of the economy and the promotion of international investment quality to inject new vitality into the global economy.Based on the purpose to better understand the relationship between labor issues and international investment and provide advice for China to better coordinate the labor protection and international investment,this paper adopts the method of normative analysis to understand the basic situation and legal origins of the international community to protect labor rights and interests,and through empirical analysis method to analysis typical cases of labor rights and investment and summed up the focus of the conflicts between international investment and labor rights.And then use the comparative analysis method to compare the labor provisions in different national investment agreements and domestic legislations.Finally,on the basis of the all above research methods,use the overall thinking method to summed up some recommendations,This paper is divided into three chapters:The first chapter of this paper is an overview of the issue of labor protection in international investment law.First,the concept of labor rights is introduced,there are three different opinions on the concept of labor rights,by comparing the different views of scholars,the author is more inclined to define labor rights as a comprehensive right,not just a certain kind of labor-related rights.The right to work includes all rights related to labor,such as employment rights,collective bargaining power,and so on.As for the nature of labor right,labor is an important means of obtaining the living material,the right to work is the embodiment of the right to life.Moreover,citizens can also achieve people’s development in all aspects through labor,therefore,the labor right is also the right of development.It can be seen that the fundamental attribute of labor right is kind of human rights.The international law of labor rights are mainly as follows: The United Nations Charter which makes the human rights become a kind of international rights.The Universal Declaration of Human Rights and International Convention on Civil and Political Rights and International Convention on Civil and economic Rights promulgate some specific labor rights by way of enumeration.The documents and conventions developed by the ILO are the most important legal sources of international labor rights,encompassing all aspects of labor rights.Through the long-term development,the international community generally recognized the four core labor rights proposed by the ILO,and the maintenance of compliance with these fundamental rights is the obligation of each State.On the basis of summing up the legal origins,the second part of this chapter further analyzes the background of labor rights in international investment,the necessity and urgency of considering labor issues in international investment is expounded from three aspects: the tread of humanization of international law,corporate social responsibility and the apparentness of labor issues in international investment.The last part of the first chapter of this paper researches the legislation of labor rights in the international investment law,analyze the BITs,FTAs and multilateral investment agreements.This paper chooses to analyze one specific BITs-2012 U.S.Model Bilateral Investment Treaty,the FTAs signed by United States and the FTAs signed by the European Union,and the relevant contents in WTO’s legislations and MAI draft.In the BITs,although the wording and intensity of the BITs signed by different countries are not the same,but in the preamble almost all BITs provides for the content of labor rights,in the text BITs provide a "non-lowing standard” provisions and some countries are also began to try to specify the labor standards for both sides to comply in their BITs.The legislation of the FTAs is characterized by the use of specialized subsidiary agreements to define labor rights,but based on cultural and historical reasons for different regions,the contents of labor rights in the FTAs are significantly different.Because the difficulty to reach the agreement and the complexity of the contents are greater than the BITs and FTAs,the provisions on labor rights in multilateral agreements are looser,lack of operationality and overall protection.The second chapter of this paper is part of the case analysis,selected two cases of international investment arbitration as well as two cases related to international mergers and acquisitions to analyze the conflicts between international investment and labor rights.Through the case of Sergei Paushok,CJSC Golden East Company and CJSC Vostokneftegaz Company v.Mongolia,this paper find that whether the investment arbitral tribunal has jurisdiction over cases involving labor disputes is mainly depends on the nature of the case and the specific provisions of the agreements,that is whether the case falls within the scope of "investment",whether it is related to the investor’s property rights,and whether the contractor has agreed to submit such a case to arbitration.And through the case of Plama Consortium Limited v.Republic of Bulgaria,this paper argues that the principle of fair and equitable treatment and indirect expropriation provision in international investment agreements affects the state’s protection of labor rights,the ambiguity of these two provisions leads to the expansion of the arbitral tribunal in its application,then the country’s reasonable conduct is likely to be determined to violate the agreements and make the country to bear huge compensation.Through the case of Apollo Tire Ltd acquires Cooper Tire & Rubber Company and the case of shineway group acquires Smithfield Foods,this paper finds that in the face of cross-border mergers and acquisitions,employees are often disturbed by the ability of the company to protect their labor rights,the layoffs,negotiations with the union and welfare and other issues are the focus of conflict in cross-border mergers and acquisitions,so during the process of mergers and acquisitions,communicating with employees and considering the impact of labor issues on the mergers and acquisitions are the key to success.The third chapter of this paper will put forward some advises regards china’s labor issues in international investment which is based on the above analysis.First of all,this paper examines the relevant legislations in China,with the form of a list of International Labor Convention which China has so far signed and emphatically analyzed China’s approval of the eight core conventions enacted by the ILO While comparing the proportions of the conventions approved by the current Member States.In addition to the international conventions,this paper has also made statistics on China’s current investment agreements and found that only a few of the thousands of agreements signed in our country have stipulated labor rights,and these provisions are more macro-content,and lack specific provisions,the way to deal with disputes such as communication and consultation are also in soft way.In the domestic legislation,China’s existing labor legal system is relatively perfect which including labor inspection,labor insurance and other aspects of the system.But most of the laws and regulations are promulgated by government not legislatures,so these regulations are less effective,and in terms of specific standards,there is no small gap between the international standards and the standards applied in China.Based on the comparison of the situations of legislations at home and abroad and the analysis of the background of international investment and labor issues,this paper puts forward some suggestions for dealing with labor protection in China.First,China needs to improve labor legislation in investment agreements,a number of recent studies have shown that international investment is not the opposite of raising labor protection standards.Countries with a complete labor protection system are more attractive to foreign investment.Therefore,it is necessary for our country to improve the current state of legislation and to actively incorporate labor protection rules in international investment law.In the course of specific legislation,our country can absorb the experience of other countries,adopt a legislative model of including the provisions of labor protection in the preamble and the text or in the subsidiary documents.But in order to avoid disputes,we need to put a more specific definition for fair and equitable treatment and indirect expropriation provision provisions to avoid being adopted by investors incorrectly.In dispute settlement,the arbitral tribunal should be bound to have jurisdiction over disputes involving labor,China can through agreeing that all acts of State,which are reasonably involved in the protection of labor rights,do not need to comply with the obligations of the investment agreements.China may also waive the manner in which all disputes are agreed to be submitted to arbitration in advance but to choose to decide whether a specific case should be submit or not.Except above measures China can also increase the transparency of investment arbitration to let public to participate in the arbitration.Second,the legislative standards must meet the interests of our country and the responsibility our country should bear.Taking into account the labor protection situation in China’s foreign investment and foreign investment in China,China should improve the protection of the core labor rights.Finally,to avoid the risk of labor in cross-board mergers and acquisitions,countries and enterprises need to pay attention to the issue of labor in cross-board mergers and acquisitions.The state needs to provide services for enterprises to help enterprises avoid risks and also to encourage enterprises to assume their own responsibility.Enterprises should do due diligence,to understand the labor law system of the investment host country and the labor rules within the target enterprise and adapt to the labor culture of the host country. |
