CPTPP项下ISDS机制用尽当地救济规则问题研究

A Research on the Exhaustion of Local Remedies Rules in ISDS under CPTPP

摘要: 正文中对当地救济的取缔，与缔约国通过冻结条款、换文等进行反对的做法，使CPTPP中ISDS机制处境进退维谷。本文通过ISDS中当地救济规则(RLR)的制度历史、比较现行国际投资条约实践以及ISDS制度创设目的与效果三大角度，论证了CPTPP中对RLR取缔的做法构成对投资者的过度倾斜保护，对ISDS而言弊大于利，并根据上述分析提出通过将更加精细化的RLR配合例外规定、实体性定义纳入CPTPP的优化方案与对中国加入CPTPP的区分化处理、优化投资法体系建议。

Abstract: The out-lawing of local remedies in the main text, together with the opposition of Contracting States through freezing clauses, exchanges of letters, and so on, puts the ISDS mechanism in the CPTPP in an awkward position. This paper, through the three perspectives of the institutional history of the local remedies rule (RLR) in ISDS, the comparison of the current international investment treaty practice, and the purpose and effect of the creation of the ISDS system, argues that this outlawed practice constitutes an overly tilted protection of investors, which is more detrimental than advantageous to ISDS, and, based on the analysis, proposes to incorporate a more refined RLR into the CPTPP mechanism by incorporating a more refined RLR with exceptions, substantive definitions, and a more detailed RLR with exceptions. Based on the above analysis, it also puts forward the optimisation of the CPTPP by incorporating a more refined RLR with exceptions and substantive definitions, and the differentiated treatment of China’s accession to the CPTPP and the optimisation of the investment law system.