| 摘要: |
| 2022年 7月 1日，历时 5年修订的 ICSID新规则生效，包含首次问世的《ICSID调解规则》，这标志着第一份适用于国际投资争端解决的调解规则正式出现。聚焦该规则的适用范围，以此为切口展开分析颇具学理价值。之所以选择适用范围这一切入点展开论述，原因在于其重要的拐点作用和研判功能，以此为基础进一步聚焦规则条款本身，对比前代 ICSID调解规则和其他机构的调解规则，分析新调解规则适用范围扩大的具体表现，并进一步讨论其灵活程度和完整性对适用范围扩大的推动。此外，该规则的适用范围在未来实践过程中存在三大阻力，包括适用上的不确定性、和解协议执行障碍和透明度与保密性之间的不平衡。以解决阻力为核心目的，列举并推演具体的消解措施可为调解机制发展提供有效路径且具有实践意义。 |
| 关键词: 国际投资争端解决 ICSID新调解规则 规则适用范围 和解协议 |
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| The Driving Factors and Resistance to the Expansion of the Scope of Application of ICSID Mediation Rule |
| KONG Qingjiang,YU Zhanyang |
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| Abstract: |
| The new ICSID Rules, which were subject to a five-year revision process, were implemented on 1 July 2022. This revision includes the inaugural ICSID Mediation Rules, which signifies the first mediation rules to be applicable to international investment dispute settlement. Consequently, it is of academic value to focus on the scope of application of the rules and analyse it as a starting point. The rationale for adopting the scope of application as a point of departure stems from its pivotal role as an inflection point and its capacity for subjective interpretation. This approach enables us to subsequently direct our attention to the provisions of the Rules themselves, facilitate a comparison with the previous mediation rules as established by other institutions, and undertake a thorough analysis of the concrete manifestations of the expansion of the scope of application of the new Mediation Rules. This will allow us to assess the degree of flexibility and completeness of the new Mediation Rules that have contributed to the expansion of the scope of application. In addition, three significant headwinds remain that hinder the rule’s implementation in future practice. These include the uncertainty surrounding its application, challenges in enforcing settlement agreements, and the discord between transparency and confidentiality. In order to address these challenges, it is imperative to identify and analyse specific mitigating measures that could facilitate the development of effective mediation mechanisms. |
| Key words: international investment dispute settlement ICSID Mediation Rules scope of application of the rules mediation agreements |
