国际投资协定中的发展权原则及其实现的法律机制研究
发布时间：2018-08-13 20:54
【摘要】：南方国家的崛起对传统的贸易、投资制度的格局提出了调整要求,调整路径之一是通过修订传统的法律规则体系以反映其发展的利益诉求,因此,国际经济法律体制及其部门法酝酿着从追求一元化标准的体制向着满足多元化利益诉求的变革。在众多诉求中,基于历史旧债和现实的发展差距,发展中国家一直致力于构建公正、合理的国际秩序和规则,以求在国际经济交往中获得快速发展,缩小与发达国家的差距,共享经济一体化的成果。然而,除了个别发展中国如“金砖五国”获得令人瞩目的发展外,广大发展中国家的发展仍然缓慢,很多国家的生存权和发展权保障仍面临着巨大困难,是国际人权保障中的薄弱环节。 国际投资作为推进世界经济发展的引擎之一,在提升发展中国家能力中发挥着积极作用,但是,当前的投资条约体制并未反映出发展中国家发展权诉求,尚未建立系统的有益于实现发展权的机制。发展权作为一项发展中国家向国际社会提出的人权,已经发展为一项国际法基本原则。这一原则的内涵包括发展中国家在国际经济交往中有权利要求承担与其能力相适应的义务,发达国家承担较多的义务,在国际贸易和投资法律机制中实行非互惠待遇,从国际经济规则的权利和义务方面具体地实现发展权。因此,本论文以发展权为切入,试图将发展权实现的考虑因素纳入追求一元高标准的投资自由化、保护投资者私人利益的投资体制中,并在国际投资协定中设置能够实现发展权原则的规则以及相关的制度安排,将抽象的发展权原则在国际投资实践中具体化,推进国际经济向着和谐共进的方向发展。 除了序言之外,本文主体部分共分六章进行论述。 第一章是发展权原则在国际投资协定中的确立。对发展权原则在国际经济和谐共进中的作用以及在国际投资体制中提出和实现发展权的必要性进行了阐述,从发展权原则的产生、内涵及推进国际经济和谐共进的价值为切入,并对国际投资协定中的发展权原则进行了界定,论述了国际直接投资在推动东道国经济增长和现代化过程中发挥的巨大作用。然而,国际投资协定缺少对发展权实现相关规定,给发展中国家执行投资协定带来了种种困难。国际投资法律体制有必要将发 展权实现因素纳入其中,在促进国际资本流动的同时,将发展中国家的发展目标和发展进程融入国际投资法律体制保护的价值之中。 第二章研究发展权原则在国际投资协定中的适用。这章在第一章提出的给予发展中国家非互惠待遇以实现发展权的总体思想指导下,又进一步提出在国际投资法律体制中适用发展权原则要处理好的几个核心问题,以给予发展中国家特殊和差别待遇为灵魂,围绕投资协定承诺的稳定性与国家发展管理的变动性冲突与协调、投资仲裁中对发展中国家国内法和国际法的综合考察、对基于发展权而为东道国外资管理政策空间的保留而展开,这些关系的协调贯穿在如何实现发展权的条款的设计中。此外,本章还简要阐述了投资法律制度中实现发展权需要完善的诸方面。 第三章到第六章分别对投资准入阶段发展权的保障机制、公平公正待遇中的发展权、国际投资条约例外体系中的发展权、国际投资征收制度中的发展权这四个方面的法律问题,围绕第二章提出的几个核心问题,进一步从规则的权利、义务的层面来具体实现发展权。 第三章是国际投资准入制度中的发展权,这是考虑到发展中国家承担义务的能力不足,在准入阶段设定的差别性的义务承诺和过渡期制度安排。本章分为两个问题来探析,第一个问题探讨投资准入差别待遇,运用列表清单的方法,依据国家的发展水平和实际需要,东道国享有裁量空间,可以选取不同的方法来控制投资进入的部门、领域,以及在本国投资中所占的比例,即通过控制权给予发展中国家更多的优惠。第二个问题是履行要求的规制,一项履行要求在经济发展水平不同的国家会产生认识和作用上的差异,在履行要求制度设计中,可以通过三分法对履行要求的内容进行分类,并引入履行要求条款下的发展例外来满足发展中国家对某些外资管制措施的需要。 第四章论述国际投资中公平公正待遇的发展权,是从条约解释和适用此待遇的角度,提出公平公正待的评价要考虑发展中国家的现实发展水平,投资仲裁应当结合国内法和国际法综合考察国家行为的合法性与合理性。公平公正待遇是衡量国家治理水平的一则标准,此标准内涵的不确定性使国际投资仲裁庭不断提高国家“治理良好”的解释标准,本文不提倡用明确的语言列举公平公正待遇的内容,建议从其适用的角度,将公平公正待遇作为仲裁庭对国家行为进行审查的一项标准,这项标准要对国家行为合法性和合理性的区分,分别用国内法和国际最低待遇标准进行判断,在对投资者合理期待的认定中考虑一国的发展阶段和水平,合理地确定最低国际标准的水平,由此控制仲裁庭的任意解释。 第五章研究国际投资协定例外体系中的发展权,这是从协调投资协定承诺的稳定性与国家管理的变动性之冲突角度展开的。不论在发达国家还是在发展中国家,重大利益的冲突与协调都不可避免,而发展中国家在某些利益协调环节由于发展能力不足,更需要予以重视和协助。例外条款这种法律机制为利益协调提供了有益的方法,本文以利益主体为标准,围绕国家主体、社会公众主体、个人主体三分法进行了划分,进而对纷繁复杂的“利益”归类梳理,在此基础上提出了建立由一般例外、国家安全例外和发展例外构成的例外体系,由此来全面协调国际投资协定中的利益冲突。 第六章探讨国际投资征收制度的发展权,这是围绕如何给予发展中国家发展政策空间而展开的。随着国家干预社会事务范围的扩展,正当的国家管理行为被认定为征收的可能性增大,征收条款对征收种类和范围的界定仍然不明晰,现实中,发展中国国家发展变革的频繁度超过发达国家,已有征收条款在间接征收的认定中排除了安全、健康和环境管理措施,这些排除事项仍不能满足发展中国家管理社会事务的需要。本章对国家管理行为展开全面分析,认为有必要将发展中国家基于发展权实现的管理行为也从间接征收中予以排除,增加发展权实现的政策空间。
[Abstract]:The rise of the Southern countries has put forward adjustment requirements for the pattern of the traditional trade and investment systems. One of the adjustment paths is to revise the traditional legal system to reflect the interests of its development. Therefore, the international economic legal system and its departmental laws are brewing from the system of pursuing unified standards to satisfying the demands of diversified interests. Among the many appeals, based on the historical debt and the actual development gap, developing countries have been committed to building a just and reasonable international order and rules in order to achieve rapid development in international economic exchanges, narrow the gap with developed countries, and share the fruits of economic integration. In addition to the remarkable development of the BRICS, the development of the vast number of developing countries is still slow, and the protection of the right to subsistence and development in many countries is still facing enormous difficulties, which is a weak link in the international human rights protection.
International investment, as one of the engines of promoting world economic development, plays an active role in enhancing the capacity of developing countries. However, the current investment treaty system does not reflect the demand of developing countries for the right to development and has not yet established a systematic mechanism conducive to the realization of the right to development. The principle of human rights has developed into a basic principle of international law. Its connotation includes that developing countries have the right to assume obligations compatible with their capabilities in international economic exchanges, developed countries have more obligations, implement non-reciprocal treatment in the legal mechanism of international trade and investment, and derive rights from international economic rules. Therefore, this paper attempts to take the realization of the right to development into consideration in the pursuit of one-dimensional and high-standard investment liberalization and the protection of the private interests of investors, and to set up rules and relevant regulations to realize the principle of the right to development in international investment agreements. Degree arrangement embodies the abstract principle of the right to development in the practice of international investment and promotes the development of the international economy in a harmonious way.
Besides the preface, the main body of this article is divided into six chapters.
The first chapter is the establishment of the principle of the right to development in the international investment agreements. It expounds the role of the principle of the right to development in the harmonious development of the international economy and the necessity of putting forward and realizing the right to development in the international investment system. It starts with the emergence of the principle of the right to development, its connotation and the value of promoting the harmonious development of the international economy, and it also discusses the international situation. The principle of the right to development in investment agreements is defined and the great role of international direct investment in promoting the economic growth and modernization of the host country is discussed. To send out
While promoting international capital flows, the development goals and processes of developing countries should be integrated into the values protected by the international investment legal system.
Chapter II studies the application of the principle of the right to development in international investment agreements. Under the guidance of the general idea of granting non-reciprocal treatment to developing countries in order to realize the right to development proposed in Chapter I, this chapter further proposes several core issues to be dealt with in the application of the principle of the right to development in the international investment legal system so as to give it to developing countries. Special and differential treatment as the soul, focusing on the stability of investment agreement commitments and the volatile conflict and coordination of national development management, the comprehensive investigation of domestic and international law of developing countries in investment arbitration, and the preservation of policy space for foreign investment management of host countries based on the right to development, how to coordinate these relations throughout In the design of the clauses for the realization of the right to development, this chapter also briefly expounds the various aspects that need to be perfected to realize the right to development in the investment legal system.
Chapter 3 to Chapter 6 respectively discuss the four legal issues of the right to development in the stage of investment access, the right to development in fair and just treatment, the right to development in the exceptional system of international investment treaties, and the right to development in the system of international investment collection. On the other hand, we must realize the right to development.
Chapter III is the right to development in the international investment access system, which takes into account the inadequacy of developing countries'ability to undertake obligations, the differential commitments set in the admission phase and the transitional institutional arrangements. The second issue is the regulation of compliance with requirements, a compliance requirement for economic development. Different countries have different understandings and roles. In the design of the performance requirement system, the content of performance requirement can be classified by the tripartite method, and the development exception under the performance requirement clause can be introduced to meet the needs of developing countries for some foreign capital control measures.
Chapter Four discusses the right to development of fair and just treatment in international investment. From the perspective of treaty interpretation and application of this treatment, it is proposed that the evaluation of fair and fair treatment should take into account the actual development level of developing countries. Investment arbitration should examine the legitimacy and rationality of state acts in combination with domestic law and international law. The uncertainty of the connotation of this standard makes the international investment arbitration tribunal constantly improve the interpretation standard of "good governance" of a country. This paper does not advocate enumerating the contents of fair and just treatment in clear language. It is suggested that fair and just treatment be regarded as an arbitration tribunal's action to state from the angle of its application. A criterion for examination, which distinguishes the legitimacy and reasonableness of State acts, is to be judged separately by domestic law and international minimum treatment standards, to take into account the stage and level of development of a country in determining the reasonable expectations of investors, and to reasonably determine the level of minimum international standards, thereby controlling arbitrary interpretation by the arbitral tribunal.
Chapter V studies the right to development in the exceptional system of IIAs, which is carried out from the perspective of coordinating the conflict between the stability of investment agreement commitments and the variability of national management. Exceptional clauses, as a legal mechanism, provide a useful way to coordinate interests. Based on the criterion of interest subject, this paper classifies the state subject, the public subject and the individual subject, and then sorts out the complicated interests. A system of exceptions consisting of general exceptions, national security exceptions and development exceptions is established to comprehensively coordinate conflicts of interest in IIAs.
Chapter 6 explores the right to development of the international investment levy system, focusing on how to give developing countries room for development policies. With the expansion of the scope of state intervention in social affairs, the possibility of legitimate state management actions being recognized as levy increases, and the definition of the levy category and scope of the levy clause is still unclear and realistic. In China, the frequency of national development and change in developing countries is higher than that in developed countries. The existing expropriation clause excludes safety, health and environmental management measures in the indirect expropriation. These exclusions still can not meet the needs of developing countries in managing social affairs. The management behavior of developing countries based on the realization of the right to development is also excluded from the indirect expropriation to increase the policy space for the realization of the right to development.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.4
，
本文编号：2182160
[Abstract]:The rise of the Southern countries has put forward adjustment requirements for the pattern of the traditional trade and investment systems. One of the adjustment paths is to revise the traditional legal system to reflect the interests of its development. Therefore, the international economic legal system and its departmental laws are brewing from the system of pursuing unified standards to satisfying the demands of diversified interests. Among the many appeals, based on the historical debt and the actual development gap, developing countries have been committed to building a just and reasonable international order and rules in order to achieve rapid development in international economic exchanges, narrow the gap with developed countries, and share the fruits of economic integration. In addition to the remarkable development of the BRICS, the development of the vast number of developing countries is still slow, and the protection of the right to subsistence and development in many countries is still facing enormous difficulties, which is a weak link in the international human rights protection.
International investment, as one of the engines of promoting world economic development, plays an active role in enhancing the capacity of developing countries. However, the current investment treaty system does not reflect the demand of developing countries for the right to development and has not yet established a systematic mechanism conducive to the realization of the right to development. The principle of human rights has developed into a basic principle of international law. Its connotation includes that developing countries have the right to assume obligations compatible with their capabilities in international economic exchanges, developed countries have more obligations, implement non-reciprocal treatment in the legal mechanism of international trade and investment, and derive rights from international economic rules. Therefore, this paper attempts to take the realization of the right to development into consideration in the pursuit of one-dimensional and high-standard investment liberalization and the protection of the private interests of investors, and to set up rules and relevant regulations to realize the principle of the right to development in international investment agreements. Degree arrangement embodies the abstract principle of the right to development in the practice of international investment and promotes the development of the international economy in a harmonious way.
Besides the preface, the main body of this article is divided into six chapters.
The first chapter is the establishment of the principle of the right to development in the international investment agreements. It expounds the role of the principle of the right to development in the harmonious development of the international economy and the necessity of putting forward and realizing the right to development in the international investment system. It starts with the emergence of the principle of the right to development, its connotation and the value of promoting the harmonious development of the international economy, and it also discusses the international situation. The principle of the right to development in investment agreements is defined and the great role of international direct investment in promoting the economic growth and modernization of the host country is discussed. To send out
While promoting international capital flows, the development goals and processes of developing countries should be integrated into the values protected by the international investment legal system.
Chapter II studies the application of the principle of the right to development in international investment agreements. Under the guidance of the general idea of granting non-reciprocal treatment to developing countries in order to realize the right to development proposed in Chapter I, this chapter further proposes several core issues to be dealt with in the application of the principle of the right to development in the international investment legal system so as to give it to developing countries. Special and differential treatment as the soul, focusing on the stability of investment agreement commitments and the volatile conflict and coordination of national development management, the comprehensive investigation of domestic and international law of developing countries in investment arbitration, and the preservation of policy space for foreign investment management of host countries based on the right to development, how to coordinate these relations throughout In the design of the clauses for the realization of the right to development, this chapter also briefly expounds the various aspects that need to be perfected to realize the right to development in the investment legal system.
Chapter 3 to Chapter 6 respectively discuss the four legal issues of the right to development in the stage of investment access, the right to development in fair and just treatment, the right to development in the exceptional system of international investment treaties, and the right to development in the system of international investment collection. On the other hand, we must realize the right to development.
Chapter III is the right to development in the international investment access system, which takes into account the inadequacy of developing countries'ability to undertake obligations, the differential commitments set in the admission phase and the transitional institutional arrangements. The second issue is the regulation of compliance with requirements, a compliance requirement for economic development. Different countries have different understandings and roles. In the design of the performance requirement system, the content of performance requirement can be classified by the tripartite method, and the development exception under the performance requirement clause can be introduced to meet the needs of developing countries for some foreign capital control measures.
Chapter Four discusses the right to development of fair and just treatment in international investment. From the perspective of treaty interpretation and application of this treatment, it is proposed that the evaluation of fair and fair treatment should take into account the actual development level of developing countries. Investment arbitration should examine the legitimacy and rationality of state acts in combination with domestic law and international law. The uncertainty of the connotation of this standard makes the international investment arbitration tribunal constantly improve the interpretation standard of "good governance" of a country. This paper does not advocate enumerating the contents of fair and just treatment in clear language. It is suggested that fair and just treatment be regarded as an arbitration tribunal's action to state from the angle of its application. A criterion for examination, which distinguishes the legitimacy and reasonableness of State acts, is to be judged separately by domestic law and international minimum treatment standards, to take into account the stage and level of development of a country in determining the reasonable expectations of investors, and to reasonably determine the level of minimum international standards, thereby controlling arbitrary interpretation by the arbitral tribunal.
Chapter V studies the right to development in the exceptional system of IIAs, which is carried out from the perspective of coordinating the conflict between the stability of investment agreement commitments and the variability of national management. Exceptional clauses, as a legal mechanism, provide a useful way to coordinate interests. Based on the criterion of interest subject, this paper classifies the state subject, the public subject and the individual subject, and then sorts out the complicated interests. A system of exceptions consisting of general exceptions, national security exceptions and development exceptions is established to comprehensively coordinate conflicts of interest in IIAs.
Chapter 6 explores the right to development of the international investment levy system, focusing on how to give developing countries room for development policies. With the expansion of the scope of state intervention in social affairs, the possibility of legitimate state management actions being recognized as levy increases, and the definition of the levy category and scope of the levy clause is still unclear and realistic. In China, the frequency of national development and change in developing countries is higher than that in developed countries. The existing expropriation clause excludes safety, health and environmental management measures in the indirect expropriation. These exclusions still can not meet the needs of developing countries in managing social affairs. The management behavior of developing countries based on the realization of the right to development is also excluded from the indirect expropriation to increase the policy space for the realization of the right to development.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.4
，
本文编号：2182160
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