The Divergence of ISDS Mechanisms between the US and the EU: Implications for the Negotiation of the China-EU Comprehensive Agreement on Investment

投资者诉国家争端解决(ISDS)机制作为中立的、去政治化的投资争端解决机制，在解决国际投资争端方面有重要作用。但实践表明，其正遭遇着忽视东道国规制权、仲裁庭条约解释权过大以及仲裁裁决不一致等“正当性危机”。美国重新签署的《美国–墨西哥–加拿大协定》主张对ISDS机制进行改良，而欧盟与加拿大重新公布的《全面经济和贸易协定》则引入司法化的投资法庭机制(ICS)以取代传统投资仲裁模式。美欧ISDS机制的改革路径分化体现出二者在改革理念层面及改革目标层面的差异。尽管二者都试图在实体规则及程序规则方面回应ISDS机制“正当性危机”，但效果却差强人意。因此，我国在与欧盟谈判《全面投资协定》时，需要审慎评估ICS架构与实效，加强对东道国规制权的程序和实体控制，建立差异化、区域化的ISDS机制，提高我国在国际投资领域的话语权和影响力。The Investor-State Dispute Settlement (ISDS) mechanism plays a significant role in the resolution of international investment disputes as a neutral and depoliticized investment dispute settlement mechanism. However, practice has seen its suffering from the “legitimacy crisis” that ignores the host state’s right to regulate, excessive treaty interpretation by arbitral tribunals, as well as inconsistent arbitral awards. The renewed United States-Mexico-Canada Agreement advocates improvements to the ISDS mechanism, while the renewed Comprehensive Economic and Trade Agreement between the EU and Canada introduces a judicialised investment tribunal mechanism (ICS) to replace the traditional investment arbitration model. The divergent reform paths of the US and EU ISDS regimes reflect their differences in philosophy and objectives of the reform. Although both tried to remedy the “legitimacy crisis” of the ISDS mechanism through improvement of substantive and procedural rules, the results are far from satisfactory. Therefore, when negotiating the Comprehensive Investment Agreement with the EU, China must carefully assess the structure and effectiveness of the ICS, strengthen the substantive and procedural control of the host country’s regulatory powers, establish a differentiated and regionalized ISDS mechanism, and enhance China’s discourse and influence in the international investment arena.