Research On Investor-State Dispute Settlement Mechanism In China

In the field of international investment,with the rise of investment protectionism,multilateralism has been impacted,and the call for reform of international investment rules has become increasingly high.Looking at Africa,in recent years,Africa’s overall political stability,economic situation is improving,its unique resource endowments and demographic dividends and other advantages continue to appear,Africa has gradually become an important destination for foreign investment.Looking at the domestic market,in 2020,under the strong impact of the pandemic on the world economy,China’s economy has shown strong resilience,and the dual identity of China’s capital exporter and foreign capital inflow country has been further highlighted.In terms of China-Africa cooperation,China’s investment in Africa has been in the ascendant since the establishment of the Forum on China-Africa Cooperation(FOCAC)20 years ago.However,in the 20 years of rapid growth in China’s investment in Africa,the legal documents on investment between China and Africa have not been developed and updated at the same time.Recently,China-Africa investment relations have not been smooth sailing,and China-Africa investment frictions have emerged under the influence of political risks such as rewarming and civil strife in African host countries,nationalization and expropriation,legal risks against the application of BIT and frequent changes in domestic laws,and social risks such as corporate social responsibility.The legal culture and dispute resolution traditions of China and Africa are similar on the basis of their own characteristics.Taking into account the special position of China-Africa cooperation,a specialized study of the China-Africa investment dispute settlement mechanism is necessary.The first chapter mainly introduces China invests to Africa and the main investment risks,as well as the protection of international law,including Bilateral,Regional and Multilateral Investment Agreements.The second chapter is divided into four parts.Based on the existing 34 Central African BITs,the first part analyzes the text and applicability of the ISDS mechanism,including the friendly settlement clause,the local remedies clause and the arbitration clause,mainly highlights the definition of "investment" and "investor",the scope of arbitration,the arbitration institution and arbitration rules,and the application of arbitration law.The second part takes the only FTA investment chapter between China and Africa as the research object,extracts the scope of application of the ISDS mechanism in the ChinaMauritius FTA(2019)and the development and changes made by friendly settlement,local remedies and arbitration clauses in the host country compared with the China-Africa BIT.PartⅢ analyzes the application of the ISDS mechanism in disputes in light of three investment disputes between mainland investors and African host countries:investment negotiations between MMG and the Democratic Republic of the Congo(DRC),Beijing EVERYWAY Company and Ghana investment arbitration,and Zhongshan Fucheng Company and Nigeria investment arbitration.Part Ⅳ concludes that the China-Africa ISDS mechanism currently has the following problems:In general,the content of the provisions of the China-Africa BIT does not highlight the characteristics of China-Africa cooperation and dispute resolution.Second,the lack of dispute prevention provisions allows disputes to enter the settlement process directly after they occur,with time and manpower consumption.Lack of necessary platforms and procedures for the prior resolution of investment disputes.Third,the vague formulation of substantive provisions and the poor alignment of the International Investment Agreements and domestic law dimensions severely limit the effectiveness of the ISDS mechanism.Again,the widespread existence of the fork in the road clause has not met the development needs of Investment between China and Africa.Finally,the scope of application and pre-procedure of arbitration are greatly limited by BIT,and in terms of the enforcement of arbitral awards,they face problems such as the recognition and enforcement of foreign arbitral awards and the failure of the host country to enforce arbitral awards on the grounds of enforcement immunity as a defense,and the Sino-African inter-investment arbitration procedure is facing development difficulties.The third chapter of this article focuses on new developments in indigenous international investment rules and ISDS mechanisms in Africa.In terms of international investment rules,the AU has repeatedly referred to the principle of sustainable development in the preamble and text of PAIC to emphasize the social responsibility of foreign investment.At the same time,the minimum standard of treatment is omitted and the rights of investors and host countries are balanced by directly establishing the obligations of investors.The PAIC has laid the foundation for the gradual harmonization of investment rules within the AU by identifying existing investment rules and the nature of the Model Law.In terms of the ISDS mechanism,the AU’s recognition of the exhaustion of local remedies in host countries and the right of counterclaims of host countries demonstrates the willingness of African countries to promote their own sustainable development and enhance their initiative in the settlement of investment disputes.In essence,it reflects the fundamental demands of African countries to break through the traditional investment dispute settlement mechanism,enhance their own and regional sovereignty and regulatory rights,and have international discourse power.This is of great guiding significance for the reform and development of the China-Africa International Investment Agreements in the future.Chapter Ⅳ of this article puts forward several suggestions for improving the investorState dispute settlement mechanism in the China-Africa IIAs.First of all,it is necessary to improve the accuracy and applicability of substantive clauses,clarify the definition of investment,the criteria for determining indirect expropriation,and the connotation of"fairness and justice",and timely adjust the treatment of entities and procedural issues and the limitations on the scope of submission to arbitration,so as to achieve the advancement of substantive clauses with the times.Second,efforts should be made to promote the diversification of investment dispute resolution methods,highlight the legal and cultural characteristics of China and Africa,add dispute prevention procedures,and promote the construction of alternative dispute resolution methods such as mediation mechanisms.At the same time,the divergence between the jurisdiction of African host countries and the more comprehensive defense of their rights by prohibiting U-turns clauses and accelerating the construction of indigenous arbitration institutions and arbitration rules in Central Africa will be used.Finally,we will further improve the procedural provisions of the ISDS mechanism,clarify the formal requirements such as the cooling-off period and notification method for negotiated settlement,refine the procedural requirements of local relief clauses,clarify the participation rights of all parties,enhance the transparency of arbitration procedures,try to use the China-Africa Joint Arbitration Center as a platform to improve the efficiency of the acceptance of arbitral awards,promote the efficient and smooth settlement of investor-state disputes,and promote the further development of investment and economic and trade relations between the two places.