학술논문
국가채무 위기에 대한 중국의 대응방안으로서의 ICSID 중재
ICSID Arbitration as a Solution for China’s Response to the Sovereign Debt Crisis
ICSID Arbitration as a Solution for China’s Response to the Sovereign Debt Crisis
Document Type
Article
Text
Text
Author
Source
중국법연구, 11/30/2022, Vol. 50, p. 319-351
Subject
Language
한국어(KOR)
ISSN
1738-7051
Abstract
当前中国已经成为全球最大的官方债权人，对外债权头寸仍在快速增 长，主权债务违约不可避免将出现常态化、持续性多发状态. 对此ICSID 仲裁可成为应对主权债务危机的有效解决思路. 主权债务争端如需提交 ICSID审理，则不仅应满足BIT项下的投资定义要求，同时需满足ICSID公 约第25条中关于“投资”的定义. 但是，该条款并未对投资进行界定. 实践 中不同仲裁庭提出并适用了投资的客观标准. 对此，一方面要在我国BIT 条款中选择性纳入客观标准，扩大可以提交ICSID管辖的投资争端范围； 另一方面，未来可以考虑在ICSID仲裁申请理由中援引仲裁庭对投资的判 断要素，从而有效维护我国的主权债权权益.
At present, China has become the world's largest official creditor, and its foreign debt position is still growing rapidly, so it is inevitable that sovereign debt defaults will become normalized and persistent. In this regard, ICSID arbitration can be an effective solution to the sovereign debt crisis. If a sovereign debt dispute is to be submitted to ICSID, it must meet not only the definition of investment under the BIT, but also the definition of “investment” in Article 25 of the ICSID Convention. However, this article does not define investment. In practice, different tribunals have proposed and applied objective criteria for investment. On the one hand, we should selectively include objective criteria in our BIT clause to expand the scope of investment disputes that can be submitted to ICSID jurisdiction; on the other hand, in future we can consider invoking the elements of the arbitral tribunal's judgment on the investment in the grounds of the ICSID arbitration claim, so as to effectively safeguard our sovereign claim rights and interests.
At present, China has become the world's largest official creditor, and its foreign debt position is still growing rapidly, so it is inevitable that sovereign debt defaults will become normalized and persistent. In this regard, ICSID arbitration can be an effective solution to the sovereign debt crisis. If a sovereign debt dispute is to be submitted to ICSID, it must meet not only the definition of investment under the BIT, but also the definition of “investment” in Article 25 of the ICSID Convention. However, this article does not define investment. In practice, different tribunals have proposed and applied objective criteria for investment. On the one hand, we should selectively include objective criteria in our BIT clause to expand the scope of investment disputes that can be submitted to ICSID jurisdiction; on the other hand, in future we can consider invoking the elements of the arbitral tribunal's judgment on the investment in the grounds of the ICSID arbitration claim, so as to effectively safeguard our sovereign claim rights and interests.