The Applicability Of State-to-state Arbitration From The Perspective Of The Relationship With Investor-to-state Arbitration

The legitimacy crisis of investor-state arbitration and the changes of international political backgrounds bring renewed attention to the applicability of state-to-state dispute settlement mechanism in settling investment disputes.The international investment agreement usually stipulates two arbitration mechanisms,namely the investor-to-state arbitration and the state-to-state investment arbitration,however,the relationship between them is not further clarified.The standard state-to-state arbitration clause allows the contracting parties to resolve any "dispute" arising from the "interpretation or application"of the corresponding investment agreement through arbitration.This broad wording makes the state-to-state arbitration and investor-to-state arbitration prone to a variety of conflicts.There is no doubt that state-to-state arbitration has great potential,but the premise of its application is the effective combination and coordination of the conflicts between state-to-state arbitration and investor-to-state arbitration.The combination and coordination between state-to-state arbitration and investor-to-state arbitration need to be analyzed from the perspectives of the nature of the investment treaties,the power of interpretation and the binding force,so as to construct practical and feasible principles.For this purpose,this thesis can be divided into the following parts:The first part,in light of the development history of investment dispute settlement,expounds the current relationship between state-to-state arbitration and investor-to-state.arbitration,and analyzes the objective needs and application possibility of state-to-state arbitration.The second part categorizes the state-to-state arbitration according to the states’ claims in the current arbitration practices,reviews and summarizes the action mechanism in each category;The third part firstly analyzes the applicable premise of state-to-state arbitration,determines its premise of application,and probes into the element of"active opposition" and the particularity of diplomatic protection.Then,it discusses the validity of state-to-state arbitration,defines the state-to-state arbitration’s binding force on contracting parties and investment tribunals.It also puts forth the premise and validity principle for the application of state-to-state arbitration mechanism and lays the foundation for discussing the mutual interaction between the two mechanisms under different temporal arrangements in the fifth part.The fourth part summarizes the basis of coordination between the two mechanisms in practice,on which the coordination of the two mechanisms under different temporal arrangements are practically analyzed,and the validity level to be followed by state-to-state arbitration are put forward.The fifth part reviews the theoretical principles proposed in the previous parts;examines China’s position and coping strategies in accordance with the main purpose of this thesis and puts forward some practical proposals.