Dynamic Practice And Research Of ISDS System In International Agreement

Since its establishment,the Investor-State Dispute Settlement(ISDS system)has played an important role in resolving investment disputes between foreign investors and the government of the host country,and has become an important part of international agreements.The ISDS system is mainly reflected in international investment arbitration.However,in the course of its development and evolution,the ISDS system has gradually exposed such shortcomings as the inconsistency of the award,the lack of transparency,the lack of impartiality and independence of the arbitrators.The International Center for Settlement of Investment Disputes(ICSID)and The United Nations Commission on International Trade Law(UNCITRAL)began reviewing and designing the ISDS system to try to correct its shortcomings.In addition,Countries around the world also put forward a variety of ISDS system reform models,such as moderate improvement,radical change and passive abolition.The United States-Mexico-Canada Agreement(USMCA),the Comprehensive Economic and Trade Agreement(CETA)and the Comprehensive Progressive Trans-Pacific Partnership(CPTPP)are the latest and the most representative international agreements currently,the ISDS system of the three agreements above presents the new changes and problems,which can reflect the dynamic practice process of the development of ISDS system.The main problems of the ISDS system in USMCA are the differential application and the "non-market economy" rules.The main innovation of CETA is to put forward the judicial scheme of ISDS system.The CPTPP suspends some provisions of the ISDS system and allows the application of the ISDS system to be curtailed by signing additional agreements.Although the ISDS system in different agreements presents different personalized characteristics,they also present the general trend that the ISDS system gradually changes to the direction of refining the specific rules of investment arbitration,weakening the central position of investment arbitration,and protecting the regulatory right of the host country.The Bilateral Investment Treaty(BIT)and Free Trade Agreement(FTA)signed by China also basically stipulate the ISDS system.On the whole,China has a relatively conservative attitude towards the ISDS system,and the ISDS system in the international agreements concluded or participated in has been in a relatively fixed state for a long time,failing to show the necessary reasons and measures according to local conditions.At present,China is actively implementing the One Belt And One Road initiative,and the RCEP negotiations are making rapid progress.It is an important period of strategic opportunity for the change of international investment rules.Facing the dynamic change trend of ISDS system in the global scope,on the one hand,China should actively deal with the negative impact of the new change of ISDS system on China in the future investment agreement negotiations,and avoid the discriminatory regulation of other countries against China.On the other hand,we need to learn from the advanced experience of other countries in the process of ISDS system reform,and continuously improve the ISDS system that China participates in signing international agreements,so as to better safeguard the interests of our country and investors.