Reformations On The Substantive Provisions In The International Investment Agreements For Safeguarding The Host State’s Right To Regulate And Their Enlightenment To China

In recent years,in the practice of international investment arbitration,foreign investors frequently challenge the host country’s regulatory actions based on the consideration of public interests in accordance with international investment treaties,which seriously threatens the regulatory sovereignty of the host country,Traditional international investment treaties,which over protect the interests of investors and neglect the regulatory right of host countries,have attracted the attention of the international community.In recent two years,the growth rate of the conclusion of international investment treaties has slowed down.2017 is the year with the lowest number of new international investment treaties since 1983.In this year,the number of treaty suspension exceeded the number of new treaties for the first time,and the formulation of international investment treaties has entered a turning point.The international community began to reflect and review the international investment policy.The sustainable development oriented investment treaty reform is being carried out in all regions.The reform focuses on sustainable development,maintaining regulatory space,and improving ISDS.The most extensive pursuit is to reserve regulatory space for the host country and confirm and maintain the regulatory rights of the host country.In the field of international investment law,the right of host country regulation refers to the right of the host country to manage or control foreign investors and their investment activities based on national sovereignty.It is an important manifestation of national economic sovereignty.In the field of international investment law,the regulation right of the host country refers to the right of the host country to manage or control foreign investors and their investment activities based on the national sovereignty,which is essential to protect national security and social public interests.In view of the undoubted legitimacy and importance of the host country’s regulatory right,it should have been given due attention and protection.However,in order to promote the realization of economic goals,modern countries often voluntarily transfer part of the host country’s regulatory sovereignty when they conclude international investment treaties to protect investors’ private property rights from arbitrary infringement by the host country.In the 1980 s,under the influence of Neo-liberalism,the United States,Canada and other major developed countries committed to promoting investment liberalization,designed and signed traditional international investment agreements that excessivelyrestricted the regulatory rights of host countries.From the perspective of substantive rules,these articles that restrict the regulatory right of host countries include the preamble clauses that emphasize investor protection and investment liberalization,the investment treatment clauses that set up and expand the treatment obligation of host countries to investors,the investment protection clauses that directly restrict the regulatory right of host countries,and the general exception clauses that can not provide sufficient protection for the regulatory right of host countries.These substantive terms that excessively restrict the host country’s regulatory right become the favorable weapon for investors to challenge the host country’s regulatory right.These substantive provisions that excessively restrict the host country’s regulatory right become Favorable weapon for investors to challenge the regulatory right of the host country.The consequences of the excessive restriction of host country’s regulatory right by the substantive provisions of the international investment treaties have been fully revealed through the international investment arbitration mechanism.The number of investment arbitration has increased exponentially,and developing countries and developed countries have suffered many setbacks in arbitration.In view of this,countries began to rethink and reform the traditional international investment agreements,and increased the consideration of the host country’s regulatory right when they concluded the new generation of international investment treaties.In the aspect of substantive rules,the treaty reform is embodied in the following aspects:adding the non-economic public interest objective in the preamble clause;refining the investment treatment clause to avoid the compensation risk caused by the ambiguity of the clause;clarifying the investment protection clause,limiting the investment protection obligation of the host country,avoiding the expansion of the obligation to compress the regulatory space of the host country;setting up the general exception clause with detailed contents to reduce the risk of compensation.The upgrading and reform of the latest international investment treaties have shown a trend of balancing the regulatory right of host countries and the protection of investors.While the investment treaties keep the regulatory space of host countries in terms of national security,health,environment and labor,they also give due consideration to the objectives of investment protection and investment liberalization.These contracting practices are of great significance to the conclusion of various international investment treaties.At present,China has the dual status of capital importing country and capital exporting country,which needs to balance the publicinterests of the host country and the protection of investors.However,the existing international investment treaties in China have interest bias,which is not fully in line with our current interest demands.In the future,when we conclude the new generation of international investment treaties,we should learn from the development trend that the new generation of international investment treaties which focuses on the protection of the host country’s regulatory right,and design a new generation of international investment agreements that take into account the interests of both investors and host countries.Specifically,we should add the consideration of the public interest and the host country’s regulatory right in the preamble clause;further clarify the scope of each treatment in the investment treatment clause;clarify the definition and scope of indirect collection in the investment protection clause,and reserve certain foreign exchange regulatory right;finally,set up the general exception clause based on the consideration of the broad public interest,so as to advance the exercise of the host country’s regulatory right Leave plenty of space.