国际投资协定与国内环境措施的法律冲突与协调

发布时间：2018-06-26 01:21

本文选题：国际投资 + 环境保护　；参考：《中国人民大学》2011年硕士论文

【摘要】：国际投资在促进东道国经济发展的同时,往往会给国内带来一系列环境问题,中国作为最大的发展中国家问题尤为突出。对此问题,东道国需要采取国内措施对投资者的行为进行规制以保护环境,这也是一国国内管辖事项,但是对于外国直接投资,不仅涉及到东道国国内法法律的问题,还涉及到双方缔结或参与的双边或多边条约和协定。多边投资条约或协定以保护投资为目的,通常规定了东道国对投资保护的义务,包括给予外国投资以国民待遇、最惠国待遇、公平公正待遇、征收补偿条款等,这就使东道国为保护国内环境而采取的措施可能与国际投资条约的保护义务相冲突,从而受到外国投资者的挑战。NAFTA条约在关注投资中的环境问题方面做出了积极贡献,其在国际投资条约中兼顾环境利益,规定所有的缔约方都不应该通过放宽国内的健康、安全和环境标准来吸引和鼓励外资。这种态度值得肯定,但在实践中,东道国国内采取的环境措施仍然可能与国际投资条约中的保护义务相冲突,构成对公平公正待遇和征收条款的违反,从而在仲裁实践中处于不利地位。因此,对国际投资协定与国内环境措施的冲突与协调进行研究,有利于在保护投资者与东道国利益之间实现平衡,对我国的立法和实践有一定启示作用。因此,该选题具有一定的理论意义和现实意义。本文将分五部分介绍国际投资协定与国内环境措施之间的法律冲突与协调: 第一部分主要介绍当前国际投资与环境保护冲突的成因。通过分析国际投资给东道国造成的环境影响,主要是造成的消极影响,包括直接的污染转移和间接的管制寒颤。并通过分析阐明二者之间形成冲突的原因,为后文介绍二者法律冲突奠定讨论基础。第二部分是对当前与环境有关的国际投资法律制度进行的介绍。通过分析国际社会对投资中的环境问题由不关注都比较关注的态度变化,反映出这个问题在法律层面得到的重视,并以NAFTA为例,通过深入分析NAFTA条约中对环境问题的规定,阐明将环境规定纳入到国际投资条约中代表了国际投资条约发展的新趋势。第三部分是对国际投资协定与国内环境措施法律冲突表现的深入分析。通过具体案例,指出当前东道国为保护环境所采取的国内措施可能违反国际投资协定中规定的不得征收条款和公平公正待遇等保护义务,从而被投资者提交仲裁,并使东道国在投资争议中处于不利地位,进而对东道国产生管制寒颤效应,由此阐明二者之间在法律冲突上的表现。第四部分试图指出国际投资协定与国内环境措施之间法律冲突的协调路径。建议在投资准入阶段实行差别待遇,引入环境友好型技术的投资,在源头上消除冲突;对于已进入的投资因需要被采取环境限制措施而被提起仲裁时,仲裁庭在仲裁案件中应,对公平公正待遇重新作出解释;在东道国签订新的国际投资协定时,应对征收等模糊的概念予以一定澄清,将东道国为保护环境而采取的措施明确排除在征收范围之外,以减少日后被诉风险;最后,慎重接受国际投资争端解决机制以减少被诉风险。第五部分结合中国的实际,指出中国面临的现实问题及完善的对策建议。通过对我国国际投资带来的环境现实问题进行研究,从国内立法完善和条约的缔结、解释方面提出应对之策。如在国内通过提高国内环境标准,制定国际化的环境标准体系;将环境成本内化以提高违法成本;在双边投资条约中格外重视对环境利益的保护,采取一系列措施实现保护投资者利益与保护东道国利益的平衡。结语部分旨在对本文中所述的国际投资协定与国内环境措施之间的法律冲突与协调进行全面的梳理。
[Abstract]:While international investment promotes the economic development of the host country, it often brings a series of environmental problems to the country. China is the biggest problem of developing countries. The host country needs to take domestic measures to regulate the behavior of investors to protect the environment. Direct national investment involves not only the domestic law of the host country, but also the bilateral or multilateral treaties and agreements that the parties have concluded or participated in. The multilateral investment treaties or agreements are aimed at protecting investment and usually stipulate the host country's obligation to protect the investment, including the granting of foreign investment with national treatment, MFN treatment and fair public investment. The measures taken by the host country to protect the domestic environment may be in conflict with the protection obligations of the international investment treaties, thus making a positive contribution to the environmental issues of investment by the foreign investor's challenge.NAFTA treaty, which takes into account the environmental interests of the international investment treaty. It is worth affirming that all parties should not attract and encourage foreign investment by relaxing domestic health, safety and environmental standards, but in practice, in practice, the environmental measures adopted at home in the host country may still be in conflict with the protection obligations in the international investment treaties, and constitute a violation of fair and impartial treatment and expropriation clause. Therefore, the research on the conflict and coordination of the international investment agreements and domestic environmental measures is beneficial to the balance between the protection of the interests of the investors and the host country, and the enlightenment to our country's legislation and practice. Therefore, the topic has a certain theoretical and practical significance.
This article will introduce the legal conflicts and coordination between international investment agreements and domestic environmental measures in five parts.
The first part mainly introduces the causes of the current conflict between international investment and environmental protection. Through the analysis of the environmental impact caused by international investment to the host country, it is mainly caused by the negative effects, including direct pollution transfer and indirect control of chill. The reasons for the conflict between the two parties are clarified and the legal impact of the two parties is introduced in the later text. The discussion laid the foundation for the discussion.
The second part is the introduction of the current international investment legal system related to the environment. Through the analysis of the changes in the attitude of the international community which are not concerned with the environmental problems in the investment, it reflects the legal importance of this problem, and takes the NAFTA as an example to analyze the environmental issues in the NAFTA treaty. It is stated that incorporating environmental regulations into international investment treaties represents a new trend in the development of international investment treaties.
The third part is an in-depth analysis of the performance of the legal conflict between international investment agreements and domestic environmental measures. Through specific cases, it is pointed out that the domestic measures adopted by the current host countries for the protection of the environment may violate the protection obligations such as the unexpropriated provisions and fair and just treatment as stipulated in the international investment agreement, thus being submitted to the arbitration by the investor. It also makes the host country disadvantaged in the investment dispute, and then the chilling effect on the domestic control of the host country, thus clarifying the performance of the two in the conflict of laws.
The fourth part attempts to point out the coordination path of the legal conflict between the international investment agreement and the domestic environmental measures. It suggests that differential treatment is implemented in the stage of investment access, the investment in environmentally friendly technology is introduced, and the conflict is eliminated at the source; the arbitration tribunal is at the arbitration tribunal when the entered investment is brought to arbitration as a result of the need for environmental restrictions. In the case of arbitration, a new interpretation of fair and fair treatment should be made; when a new international investment agreement is signed by the host country, the vague concepts such as expropriation should be clarified, and the measures taken by the host country for the protection of the environment are clearly excluded from the scope of the collection in order to reduce the risk of subsequent prosecution; finally, the international investment dispute is carefully accepted. Solve the mechanism to reduce the risk of prosecution.
The fifth part, based on the reality of China, points out the practical problems and suggestions for China. Through the study of the environmental problems brought about by the international investment in China, the countermeasures are put forward from the improvement of domestic legislation, the conclusion of the treaty and the interpretation of the treaties. For example, the international environment is formulated by improving the domestic environmental standards in China. The standard system; internalize the environmental costs to improve the illegal costs; pay special attention to the protection of the environmental interests in the bilateral investment treaties and take a series of measures to protect the interests of the investors and protect the interests of the host country.
The conclusion part aims at combing the conflict and coordination between the international investment agreement and the domestic environmental measures in this article.
【学位授予单位】：中国人民大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.6

【参考文献】