Development of Mining Sector of Mongolia:Investor-State Arbitration and International Investment Agreement Clause Dilemma

• 作者: Munkhselenge Purevdorj
• 来源期刊: 美中公共管理:英文版
• 学科: 经济
• 关键词: investor-state arbitration IIA foreign direct investment MINING Mongolia
• 年，卷（期）: 2020,（5）
• 页码范围: 221-228
• 页数: 8页
• 分类号: F42

摘要

The research constitutes the host state’s right and investor’s right towards investment disputes,and legal protection for the host state in case of investment dispute.Although investment arbitration deals with cases mostly on infringement of investor’s rights,the host state’s right is mainly silent on bilateral agreements and other investment agreements.International Investment Agreements(IIAs)are concluded between states.Only states give consent to arbitration in IIA.International arbitration is a voluntary and consent-based method of settling disputes.It can be referred from the present investment agreement that offers and consent provisions are legislated not sufficiently in the investment agreement for the protection of the host state and investor.There exists no prevention and monitoring instrument,or clause in the investment agreement that prevents investor’s“taking advantage”of consent to filing to arbitration.Taking advantage can be defined as exploit or make unfair use of one’s own benefit.This also refers to example of disputes for the host states,which lack of international dispute experiences.The host states,which lack of international dispute experiences,are count to be developing countries,where natural resource and mining are a dominating sector.Mongolian mining disputes are counted to be around 10 in numbers since 2006.Comparing to average yearly number of investor-state dispute settlement(ISDS)cases,the number of cases arouse against Mongolian government is considered to be superior in quantities,and abstract in sequence of period of timing.Convention and Rules on Transparency are still silent on investment agreement infringements on offer and consent provisions.Thus,investment agreements and Bilateral Investment Treaties(BITs)should include clauses on offer and consent provisions of the host state and investor relations on investment dispute in order to protect both rights of the host state and investor,and prevent further infringements in the dispute process.