国际投资协定中一般例外条款研究及中国的立场与选择
发布时间：2018-12-20 11:31
【摘要】：21世纪以来,随着世界范围内可持续发展理念的普及,经济全球化负面效应的显现以及全球市民社会与非政府组织的兴起,各主权国家开始注意到国际投资协定单一的投资保护目标和宗旨对东道国必要管理主权的限制及对公共利益的损害,并积极推动国际投资法制改革。越来越多的国家开始注意合理设计投资协定,通过在投资协定中增加一般例外条款,在做出投资保护承诺的同时,为东道国实施必要措施保护公共利益保留合理的政策空间,使其由原来的单向注重投资者保护向追求投资者利益与东道国公共利益平衡的模式发展。但是,一般例外条款起源于国际贸易领域,其在国际投资领域的利益平衡功能在近年来才受到重视。而且相比于投资协定中普遍存在的其他实体性条款,一般例外条款的发展起步晚,在不同国际投资协定中的规定形式各样,在国际投资仲裁实践中还未出现援引一般例外条款的案例。国际投资法学界对一般例外条款的价值功能、性质、解释适用和审查标准等方面也存在分歧意见。本文肯定了际投资协定中纳入一般例外条款的必要性,但要想实现一般例外条款平衡投资者-东道国间利益的功能,有必要对其进行专门研究。本文的研究内容共分为以下五章:第一章主要对一般例外条款的概念进行了界定,明确一般例外条款是适用于整个投资协定的保护东道国公共利益的免责条款。其中具体分析了公共利益这一核心概念,并肯定了公共利益目标的发展变化性。为进一步明确一般例外条款的概念,将其与非排除措施条款、特别例外条款、安全例外条款进行了对比分析。第二章主要从公共利益保护问题的提出、国际投资法制利益平衡模式改革和一般例外条款的利益平衡功能三方面详细分析了在国际投资协定中纳入一般例外条款的必要性。认为一般例外条款的纳入无论对国际投资法制的可持续发展还是对东道国、投资者与投资者母国的共同的可持续发展都有积极的促进作用。第三章首先总结了一般例外条款的发展现状及条款规定的特点,并将一般例外条款按照结构构成分为前言性要求、公共利益目标和目标与措施的关联性要求三部分进行了详细分析。然后为引起仲裁庭对东道国公共利益的关注,对一般例外条款的解释提供方向和指引,限制仲裁庭的自由裁量权,介绍了可持续发展视角下的解释方法和借鉴WTO 一般例外条款的解释方法。第四章对一般例外条款在仲裁实践中的审查与适用问题进行了研究。首先综合考虑一般例外条款的利益平衡功能,加上对重大安全例外条款自裁决性质的分析,笔者认为一般例外条款的性质不易采用一刀切的方式,应该综合考虑缔约国国情实际和具体的公共利益目标的特点,使用确定的的措辞设定成自裁决性质或者非自裁决性质。并且明确了一般例外条款不能排除仲裁庭的审查权。仲裁庭可以根据一般例外条款的性质进行相应的实质审查或者善意的形式审查。第五章根据中国目前兼具投资输入国和投资输出国身份的国际投资角色定位,从综合考虑的角度,提出符合我国目前双重投资身份需要的一般例外条款设计建议,以期能够为我国今后新投资协定的签订或者已有投资协定的修改提供可行性借鉴。
[Abstract]:Since the 21st century, with the popularization of the concept of sustainable development in the world, the negative effects of the economic globalization and the rise of the global civil society and non-governmental organizations, The sovereign states have begun to take note of the limitations of the single investment protection target and purpose of the international investment agreement on the need to manage the sovereignty of the host country and the harm to the public interest, and to actively promote the reform of the international investment legal system. A growing number of countries have begun to pay attention to the rational design of investment agreements, through the addition of general exceptions in the investment agreement, the implementation of the necessary measures to protect the public interest in a reasonable policy space, while making investment protection commitments, It is developed by the original one-way focus on the investor protection to the pursuit of the balance of the investor's interests and the public interest of the host country. However, the general exception clause originated in the field of international trade, and its balance of interests in the field of international investment has been paid attention in recent years. Moreover, as compared with other substantive provisions that are prevalent in the investment agreement, the development of the general exception clause is very late, and in the various international investment agreements, there is no case in which the general exception clause is invoked in the practice of international investment arbitration. There are differences in the value function, nature, interpretation and application of the general exception clause in the international investment law circle. This paper affirms the need to include the general exception clause in the inter-host investment agreement, but it is necessary to study the general exceptions to balance the function of the investor-host country's interests. The research contents of this paper are divided into the following five chapters: the first chapter defines the concept of general exception clause, and makes clear that the general exception clause is a disclaimer that is applicable to the whole investment agreement to protect the public interest of the host country. In this paper, the core concept of the public interest is analyzed, and the development of the public interest target is affirmed. In order to further clarify the concept of general exceptions, the non-exclusion clauses, special exception clauses and safety exception clauses are compared and analyzed. In the second chapter, the necessity of the general exception clause in the international investment agreement is analyzed in detail from the aspects of public interest protection, the balance model of international investment and the balance function of general exceptions. It was considered that the inclusion of the general exception clause had a positive effect on the sustainable development of the international investment rule and the common sustainable development of the host country, the investor and the home country of the investor. In the third chapter, the present situation and the characteristics of the general exceptions are summarized, and the general exceptions are divided into the preface, the objective of the public interest and the relationship between the objective and the measures, and the three parts are analyzed in detail. Then, in order to attract the attention of the arbitration tribunal to the public interest of the host country, to provide direction and direction for the interpretation of the general exception clause, to limit the discretion of the arbitral tribunal, the interpretation method under the view of sustainable development and the interpretation method of the general exception clause of the WTO will be introduced. The fourth chapter makes a study of the review and application of general exceptions in the practice of arbitration. First of all, considering the benefit balance function of the general exception clause, and the analysis of the self-ruling nature of the major security exception clause, the author thinks that the nature of the general exception clause is not easy to adopt a one-size-fits-all manner, The characteristics of the actual and specific public interest objectives of the State party should be considered in a comprehensive manner, and the use of the established language is set to the nature of the award or the nature of the non-self-determination. and it was clear that the general exception clause could not exclude the power of the arbitral tribunal's review. The arbitral tribunal may, in the light of the nature of the general exceptions, conduct a corresponding substantive review or a form of good faith. In the fifth chapter, according to the current position of the international investment in the status of both the investment and the investment-exporting countries, the paper puts forward the general exception clause design proposal which is in accordance with the present dual-investment status of our country from the point of view of the comprehensive consideration. so as to provide a feasible reference for the signing of the new investment agreement in China or the modification of the existing investment agreement.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.4
[Abstract]:Since the 21st century, with the popularization of the concept of sustainable development in the world, the negative effects of the economic globalization and the rise of the global civil society and non-governmental organizations, The sovereign states have begun to take note of the limitations of the single investment protection target and purpose of the international investment agreement on the need to manage the sovereignty of the host country and the harm to the public interest, and to actively promote the reform of the international investment legal system. A growing number of countries have begun to pay attention to the rational design of investment agreements, through the addition of general exceptions in the investment agreement, the implementation of the necessary measures to protect the public interest in a reasonable policy space, while making investment protection commitments, It is developed by the original one-way focus on the investor protection to the pursuit of the balance of the investor's interests and the public interest of the host country. However, the general exception clause originated in the field of international trade, and its balance of interests in the field of international investment has been paid attention in recent years. Moreover, as compared with other substantive provisions that are prevalent in the investment agreement, the development of the general exception clause is very late, and in the various international investment agreements, there is no case in which the general exception clause is invoked in the practice of international investment arbitration. There are differences in the value function, nature, interpretation and application of the general exception clause in the international investment law circle. This paper affirms the need to include the general exception clause in the inter-host investment agreement, but it is necessary to study the general exceptions to balance the function of the investor-host country's interests. The research contents of this paper are divided into the following five chapters: the first chapter defines the concept of general exception clause, and makes clear that the general exception clause is a disclaimer that is applicable to the whole investment agreement to protect the public interest of the host country. In this paper, the core concept of the public interest is analyzed, and the development of the public interest target is affirmed. In order to further clarify the concept of general exceptions, the non-exclusion clauses, special exception clauses and safety exception clauses are compared and analyzed. In the second chapter, the necessity of the general exception clause in the international investment agreement is analyzed in detail from the aspects of public interest protection, the balance model of international investment and the balance function of general exceptions. It was considered that the inclusion of the general exception clause had a positive effect on the sustainable development of the international investment rule and the common sustainable development of the host country, the investor and the home country of the investor. In the third chapter, the present situation and the characteristics of the general exceptions are summarized, and the general exceptions are divided into the preface, the objective of the public interest and the relationship between the objective and the measures, and the three parts are analyzed in detail. Then, in order to attract the attention of the arbitration tribunal to the public interest of the host country, to provide direction and direction for the interpretation of the general exception clause, to limit the discretion of the arbitral tribunal, the interpretation method under the view of sustainable development and the interpretation method of the general exception clause of the WTO will be introduced. The fourth chapter makes a study of the review and application of general exceptions in the practice of arbitration. First of all, considering the benefit balance function of the general exception clause, and the analysis of the self-ruling nature of the major security exception clause, the author thinks that the nature of the general exception clause is not easy to adopt a one-size-fits-all manner, The characteristics of the actual and specific public interest objectives of the State party should be considered in a comprehensive manner, and the use of the established language is set to the nature of the award or the nature of the non-self-determination. and it was clear that the general exception clause could not exclude the power of the arbitral tribunal's review. The arbitral tribunal may, in the light of the nature of the general exceptions, conduct a corresponding substantive review or a form of good faith. In the fifth chapter, according to the current position of the international investment in the status of both the investment and the investment-exporting countries, the paper puts forward the general exception clause design proposal which is in accordance with the present dual-investment status of our country from the point of view of the comprehensive consideration. so as to provide a feasible reference for the signing of the new investment agreement in China or the modification of the existing investment agreement.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.4
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1 张菊辉,康卫东;论关贸总协定中的例外条款和限制性措施[J];深圳大学学报(人文社会科学版);1993年02期
2 任洁;关贸总协定的基本规则及其例外条款[J];w芸，
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