论ISDS上诉机制改革与中国对策

The Reform of ISDS Appeal Mechanism and China’s Countermeasures

摘要: 脱胎于国际商事仲裁的投资者–国家争端解决机制(Investor-State Dispute Settlement，简称ISDS)在制度设立之初就存在着公法性缺失的内在制度缺陷。在“均衡自由主义”的国际投资法体系背景下，现有ISDS机制片面偏袒投资者利益、裁决不一致性等问题得到关注：晚近以来，国际社会不断提出设立国际投资仲裁法庭包括上诉机制的建议，其中UNCITRAL第三工作组正在进行的关于上诉机制的改革，兹事体大，不可不察。中国作为新兴资本输出国与投资双向流动的大国，在新一代国际投资规则中具备自身特殊的利益诉求，应顾全我国利益并兼顾国际公益，推进ISDS上诉机制改革。

Abstract: The investor-state dispute settlement system, which grew out of international commercial arbi-tration dispute settlement, referred to as ISDS, has its lack of public law at the beginning of its establishment within its internal institutional defects. In the background of “balanced liberalism” law system, the favoritism of investors’ interests, inconsistency and other issues of the existing ISDS have been concerned: Recently, the international community has continuously proposed the establishment of an international investment arbitration tribunal, including an appeal mechanism. The reform of the appeal mechanism underway in Working Group III of UNCITRAL is of great importance. China is an emerging capital exporter and a large country with two-way investment flows, having its own special interests in the new generation of international investment rules. It should take into account the interests of China and the international public interest, and promote the reform of ISDS appeal mechanism.