“一带一路”倡议下双边投资协定对中国企业海外投资的保护  

Protection of Chinese Enterprises’ Overseas Investments under Bilateral Investment Treaties under “The Belt and Road” Initiative

作　　者：孙博 钟妮 周家魁 

机构地区：[1]悉尼大学法学院,澳大利亚 悉尼 [2]众成清泰(济南)律师事务所,山东 济南

出　　处：《争议解决》2022年第3期509-518,共10页Dispute Settlement

摘　　要：随着“一带一路”倡议的提出,越来越多的中国企业在该区域内投资。然而“一带一路”沿线多为发展中国家,投资者进行投资时会面临政治和法律风险。双边投资协定对“一带一路”建设具有推动作用且对中国企业海外投资提供了法律保障。但中国与沿线国家签订的投资协定大多在20世纪八九十年代,条款内容陈旧且不细致,这在中国投资者对东道国提起投资仲裁时无法提供充分的法律保障。本文通过对国际投资仲裁中涉华案例进行研究,建议中国在日后更新双边投资协定时应注意对“投资者”身份、可提请仲裁的争端范围以及“间接征收”概念做进一步明确,从而降低中国海外投资者的败诉风险。With the Belt and Road initiative, more and more Chinese enterprises are investing in the region along the Belt and Road. However, as most of the countries along the Belt and Road are developing countries, the investors face political and legal risks when investing in the region. Bilateral investment treaties have been instrumental in the construction of the Belt and Road and have provided institutional safeguards for Chinese companies’ overseas investment as well. However, such treaties between China and countries along the Belt and Road were signed in the 1980s and 1990s, and their provisions are old and not detailed, which does not provide suffi-cient legal protection for Chinese investors when they initiate investment arbitration against the host country. By studying cases involving China in international investment arbitration, this paper suggests that China should pay attention to further clarifying the identity of “investor”, the scope of disputes that can be submitted to arbitration and the concept of “indirect expropriation” when up-dating bilateral investment treaties in the future, so as to reduce the risk of losing cases for Chinese investors.

关 键 词：一带一路 双边投资协定 投资仲裁 间接征收 

分 类 号：D92[政治法律—法学]