Research On The New Development Of International Investment Agreement Exit Mechanism And China’s Countermeasures

The legal system of international investment agreement is facing major changes.Traditional international investment agreement tend to protect the interests of investors both in terms of entities and procedures.The most typical example is the inclusion of an investor-state dispute settlement mechanism that allows foreign investors to initiate international arbitration procedures to file claims against the host country.The existing practice of international investment arbitration shows that the international investment arbitration tribunal tends to make interpretations that are beneficial to foreign investors in terms of the interpretation of treaties.In response to this problem,many countries have begun to amend their own international investment agreement strategies,and even tried to exit from the "ICSID Convention" and terminate the bilateral investment treaty to revoke the authorization of the investment arbitration tribunal to reduce the disadvantages caused by the conclusion of the treaty influences.For example,the exit of the three Latin American countries from the "ICSID Convention" is a typical example.Subsequently,South Africa,Indonesia and other countries also began to review and terminate some bilateral investment treaty.The exit of the treaty has therefore become an important way for the contracting states to control the international investment arbitration tribunal and even lead the voice of the reform of the international investment legal system.However,unlike other international treaties,international investment agreement generally contain special "survival clauses".The problem that arises from this is that even if the contracting states terminate the treaty,they still face the problem of "end but never ends" the treaty.This not only greatly reduces the effectiveness of the country’s "exit",but to a certain extent,it also hinders the pace of reform of international investment agreement.On the other hand,the exit of international investment agreement means that foreign investors’ benefits from the treaty will be reduced.Like other countries,China also faces this problem.As of December 2020,my country’s first-generation bilateral investment treaty can be exercised.There are 98 bilateral investment treaty with exit rights,most of which are outdated.It is urgent to review the entire treaty system and implement the abolition and reformation of treaties.In view of this,this article takes the international investment agreement exit mechanism as the research object,sorts out the exit clauses and survival clauses in the treaties,summarizes and analyzes the relevant practices of various countries,and discusses the challenges that may be brought by existing practices and the countermeasures.Finally,I return to the review and analysis of the specific practice of China’s international investment agreement exit mechanism,and propose China’s countermeasures.This article is composed of introduction,body and conclusion.The body is divided into five parts.On the basis of defining the concept and scope of the research object,the first part describes the dual function of the international investment agreement exit mechanism from the aspects of safeguarding national sovereignty and protecting investor rights,and combines specific practices to induce the arbitration tribunal to infringe on national sovereignty interests.There is an urgent need to exit from the treaty,but the interests of foreign investors still need to be taken into consideration,as well as the legal dilemma that the existence of the treaty makes the treaty "end but never ends".The second part sorts out and categorizes the texts of bilateral investment treaty and other international investment agreement,focusing on the interpretation of the exit mechanism of international investment agreement from the entry into force period clause,exit clause and survival clause of the treaty,and summarizes the exit mechanism of international investment agreement’s evolution process.The third part reveals the current challenges facing the exit mechanism of international investment agreement through the evolution of international investment agreement,combined with relevant data from the United Nations Conference on Trade and Development.With the continuous advancement of contracting practices in various countries,the practice of the international investment agreement exit mechanism has shown a diversified feature.This diversification also makes the contracting practice fragmented,causing various problems.For example,conflicts between treaties,uncertainty in the exercise of the right of exit by contracting states,and the derogation of the rights of foreign investors.The fourth part seeks possible ways to deal with the challenges brought about by the new development of the exit mechanism of international investment agreement.For example,by flexibly designing and applying exception clauses,it can reduce the arbitrarily exit of states parties from the treaty,clarify the conditions for states parties to exercise their exit rights,and clarify the specific scope of application of the survival clauses.The fifth part combines the relevant official data to investigate the current status of my country’s international investment agreement exit mechanism,discusses the shortcomings of my country’s international investment agreement exit mechanism,and puts forward corresponding reform suggestions on these issues.