중국 관련 ICSID 투자자 국가 분쟁 중재 사건 연구 - 중국의 ISDS 경험 및 전망을 중심으로 -

As the second largest economy in the world, China's international investment system is also growing rapidly. International investment arbitration cases involving Chinese investors suing host countries and the Chinese government being sued are occurring, but not commensurate with China's large volume of overseas investments, China's experience in ISDS is not extensive. As of December 2021, the International Center for Settlement of Investment Disputes (ICSID) has recorded only 14 dispute cases involving China (including investors from Hong Kong and Macao). As China becomes a major two-way investment country, especially with the Belt and Road Initiative (BRI), it is reasonable to believe that the proportion of investor-state arbitration cases involving China will increase. In this context, strengthening the research and analysis of relevant cases can provide experience and insights for Chinese investors in future ISDS, as well as provide Chinese solutions for the ongoing ISDS reform. This paper focuses on China's limited experience in ICSID and selects four representative cases, namely, Xie Yeshen v. Government of Peru, the “first Chinese case” heard in ICSID; Ping An of China v. Government of Belgium, the first case in which a Chinese company used the ICSID mechanism to sue the host government; the first case in which the Chinese government was the respondent in ICSID and won - Anseong Housing Corporation of Korea v. The Chinese Government and Ekran Berhad v. the Chinese Government, the first case in which China ended arbitration by settlement in ICSID. Through a legal analysis of the parties' claims and points of contention in these cases, China's attitudes in investor-state arbitration on issues related to the jurisdiction of arbitral tribunals, most-favored-nation treatment, and indirect expropriation are further discussed, and finally, China's new practices and approaches in investment agreements in recent years and China's attitudes on ISDS reform are introduced. This paper is divided into three parts, except for the introduction and conclusion. The first part is an introduction to the representative cases, including the basic facts of each case, the focus of the dispute and the different claims of the parties to the case, and highlights the reasons for the arbitral tribunal's decision. The second part discusses the legal issues in the relevant decisions of each case. The focus of the dispute in each case is discussed in detail in terms of jurisdiction, most-favored-nation treatment and indirect expropriation, respectively. China's new approach in bilateral and multilateral investment agreements is also introduced. The third part examines the value of these representative cases to China. The refinement of China's new generation of BITs and the change of attitude in investment dispute settlement are discussed in the light of China's current overseas investment status and new practices in investment agreements in recent years, while China's new proposals for the ongoing ISDS reform and its more active and open attitude in international investment are introduced.