Application Of The Exhaustion Of Local Remedies In International Investment Dispute Settlement

The exhaustion of local remedies as an ancient international customary law can be traced back to the thirteenth to fourteenth centuries and subsequently widely used in international human rights protection and international investment disputes.With the development of economic globalization,the international investment field has set off a wave of investment liberalization and began to emphasize the elimination of international investment barriers.In the 1960 s,the International Investment Dispute Resolution Center came out.Many countries are more inclined to allow investors to directly submit international investment arbitration to investment host countries in international investment disputes,and the use of local remedies has shown signs of weakening.In recent years,due to some problems in international investment arbitration exposed by practice,countries' attitudes toward international investment arbitration have begun to change.At the same time,many developing countries have made breakthroughs in economic and political development,and domestic laws and regulations have been further improved,making it possible to achieve relief for injured investors in domestic relief procedures.In addition,the economic development of developing countries has led many developing countries to shift from pure capital importing country attributes to capital importing countries and capitalexporting countries.Compared with developing countries,many developed countries have experienced industrial hollowing out due to the industrial transfer in the early stage.In order to eliminate the hollowing out of the industry,developed countries began to introduce overseas investment to develop internal industries.In this context,developing countries will reconsider how to safeguard the rights and interests of domestic investors based on the interests of their newly added capital-exporting countries,instead of simply relying on the principle of introducing foreign capital as much as possible,and abandoning local remedies;After the introduction of foreign capital,the principle of exhaustion of local remedies will be reconsidered based on the consideration of safeguarding the sovereignty of the country.With regard to such changes,what attitude should we adopt in applying international exhaustion principles in international investment disputes? Regarding the question of whether local remedies should be applied in the settlement of international investment disputes,will there be any new changes in the future? In essence,how should we weigh the relationship between investment liberalization and the maintenance of national judicial sovereignty? These are all issues that need to be considered in international investment.Through the historical research method,the literature research method and the comparative research method,this paper explores the definition,theoretical basis and basic content of the exhaustion of local remedies.By comparing the practices of countries in previous and current international investments on the exhaustion of local remedies,the changes in the application of the principles and the reasons for the changes are analyzed,and the future trends are predicted.On this basis,this paper puts forward some opinions on the attitude of China in the international investment disputes,and puts forward the experience of exhausting the local remedy principle,and applies the feasibility and rationality of exhausting the local remedy principle in the “The Belt and Road” international investment dispute.The analysis puts forward its own views on how to apply the principle of exhaustion of local remedies in the“The Belt and Road” international investment dispute.The full text of this article consists of four parts:The first chapter analyzes and summarizes the theoretical aspects of the exhaustion of local remedies.The first part of this chapter analyzes and summarizes the definition and theoretical basis of the exhaustion of local remedies.This part compares the exhaustion of local remedies in different documents and exhausts them from “exhaustion” and “local remedies”.The definition of the local remedy principle is analyzed,in addition to the national sovereignty,territorial jurisdiction,state responsibility and Calvo Doctrine's theoretical basis for the exhaustion of local remedies;the second part of the application of the principle of exhaustion of local remedies,On the basis of the applicable methods and the application of the exception analysis,the third part further analyzes the relationship between the exhaustion of local remedies and Calvo Doctrine,so that to follow up the analysis of Calvo Doctrine can give thoughts on the development of the exhaustion of local remedies.The second chapter is the core content of this paper.It expounds and comprehensively analyzes the development status of the exhaustion of local remedies in the current international investment dispute settlement.The second chapter is divided into three parts.The first part introduces the application of the principle of exhaustion of local remedies in the current international investment dispute settlement,and specifically introduces the International Investment Dispute Resolution Center(hereinafter referred to as: ICSID)and the North American Free Trade Agreement(Hereinafter: NAFTA),the application of bilateral investment agreements(hereinafter referred to as: BITs)in different countries for the application of local remedies in the settlement of international investment disputes,on the basis of which China has exhausted local governments in the settlement of international investment disputes.The application and attitude of the principle of relief are explained.The second part details the current situation of whether developed countries and developing countries apply the principle of exhaustion of local remedies in the settlement of international investment disputes.The third part is from the attitude of countries to international investment arbitration.The transformation,the strength ofdeveloping countries will affect the settlement of international investment disputes,and the current international investment pattern will be subject to new changes.The three perspectives will be used to analyze the reasons for the changes in the attitude of exhausting local remedies in the current international investment dispute settlement.The third chapter of this paper predicts whether the local remedy principle has changed in the future international investment dispute settlement.This chapter is divided into two parts.The first part proposes that in the future international investment dispute,the local remedy principle will still be exhausted.As an international customary law,but there may be a weakening trend,and from the perspective of national sovereignty and investment liberalization,this view provides a reason analysis,pointing out that in the current and future international investment environment,countries will change Past attitudes,prioritizing national sovereignty and treating international remedies more cautiously,but at the same time,for the irreversible trend of investment liberalization,countries will further consider the application of local remedies based on the principle of national sovereignty.The second part combines the “The Belt and Road” initiative that China is currently building with many countries in the world.The particularity of international investment dispute settlement in the “The Belt and Road Initiative” and the application of local remedies in the “The Belt and Road” initiative are reasonable.From the perspective of sex,it analyzes the feasibility of applying the principle of exhaustion of local remedies in the settlement of international investment disputes in the “The Belt and Road” initiative.The fourth chapter of this paper gives an opinion on the attitude of China in the international investment disputes on the attitude of exhausting local remedies.The content of this chapter is divided into three parts.The first part is how to correctly handle the relationship between the principle of MFN treatment in international investment and the principle of exhaustion of local remedies.After analysis,it is stated that the principle of MFN treatment should not be introduced into the settlement of international investment disputes.The application of the exhaustion oflocal remedies cannot be ruled out.The second part is based on the status of a two-way investment power,how should China treat the exhaustion of local remedies,and believe that China should pursue investment liberalization on the basis of adhering to national sovereignty,which is embodied in the basis of insisting on exhausting local remedies.Allow appropriate adjustments to the content of the exhaustion of local remedies.The third part proposes that in the “The Belt and Road”international investment dispute,the principle of exhaustion of local remedies should be applied appropriately,and the mode selection should be applied to the application of local remedies in the regional international investment dispute settlement mechanism and bilateral investment agreements.