供應鏈盡責理念影響下的國際投資條約中的勞工條款：國際實踐與中國對策

The Impact of Supply Chain Due Diligence on Labor Provisions in International Investment Agreements: Global Practice and China's Response

晚近，供應鏈盡責理念日益受到重視，越來越多的國家和國際組織推動工商企業強化包括勞工權利在內的人權保護，勞工保護成為國際投資條約實踐中的重要議題。越來越多的國際投資條約納入了勞工條款，這一實踐的影響是複雜的。一方面，納入勞工條款有助於經由國際投資條約提高國際經濟活動乃至全球化的普惠性。另一方面，勞工議題也可能被誤用或濫用，重要表現是國際投資條約可能不當納入勞工條款，並且國際投資仲裁庭可能不當適用勞工條款，從而導致對東道國管制權的過度制約，進而促使跨國公司採取“過度遵守”的做法。中國整體上支持供應鏈盡責理念，並且在投資條約實踐中逐步接受勞工條款。但是，中國應當重視勞工議題被誤用或濫用的風險，努力在投資條約談判中提出適當的勞工條款，確保投資條約不偏離正確的軌道，更好維護中國作為投資東道國和母國的利益。

In the contemporary global landscape, the supply chain has emerged as the primary mechanism for worldwide resource allocation. The discourse surrounding labor standards has extended beyond international trade and into the global economy, crystallizing into the concept of ''Supply Chain Due Diligence.'' This conceptual evolution has prompted an increasing number of countries and international organizations to advocate for heightened labor safeguards, thereby positioning labor protection as a pivotal component within the framework of International Investment Agreements (IIAs). The integration of labor provisions in a mounting array of IIAs introduces complexities. On one hand, incorporating labor issues into IIAs strikes a balance between investment promotion and labor protection through mechanisms like Investor-State Dispute Settlement (ISDS) or the State-State Dispute Settlement (SSDS). Such mechanisms are more binding compared to those employed in the international labor law, namely ''moral persuasion'' and ''mobilization of shame.'' On the flip side, labor provisions in IIAs may be wielded as a novel policy instrument in global competition under the guise of Supply Chain Due Diligence, and potentially lead to a decline in both investment promotion and labor protection. Through empirical analysis of labor provisions within existing IIAs, this study identifies two predominant Western models in the international community: the ''sanction-based'' modelled by the United States and the ''promotion-based'' modelled by the European Union (EU). In contrast to the U.S. model's special provision for labor and investment, the EU's model prefers to ''embed'' labor issues within the sustainable development provision. Given the evolving nature and sustainable development provision, the EU model may prove more effective than the U. S. model when interpreted and applied dynamically, supported by a robust enforcement mechanism. Notably, ISDS arbitral tribunals in cases like Piero Foresti v. South Africa, Paushok v. Mongolia, Goetz v. Burundi, and UPS v. Canada have exercised self-restraint, fully respecting the regulatory power of host states on labor issues. However, in 2021, the EU-South Korea Panel of Experts Report adopted an assertive interpretation of labor provisions, extending labor protection obligations beyond ''trade-related'' issues and endowing soft law obligations with mandatory binding force by ''embedding'' them into the EU-South Korea FTA. This may introduce greater uncertainty in future dispute settlement practices. The labor provisions within China's IIAs are characterized by dispersion, most of which are oath or best-efforts provisions. This lack of consistency hinders the establishment of a coherent Chinese model. To safeguard mutual investment interests, China should meticulously address labor provisions in IIAs under the impact of Supply Chain Due Diligence. Considering the Chinese government's human rights stance and the institutional alignment between IIAs and ILO Conventions, both the Chinese government and enterprises should actively respond to rational IIAs content, robustly counter provisions deemed impractical, and underscore parallel competition through alternative frameworks. It is advisable to integrate ''Chinese-model'' labor provisions into China's IIAs, specifically, adopting a promotion-oriented mindset, systematically organizing the preamble, regulatory rights in labor matters and exceptional provisions, and incorporating a dedicated labor dispute resolution mechanism. Moreover, China should concentrate on the effective enforcement of labor provisions by aligning domestic and foreign-related rule of law in practice, thereby bolstering China's influence in the emerging landscape of IIAs.