跨國公司侵害的司法救濟困境：投資仲裁作為補充機制的比較優勢

Dilemma of Judicial Remedy for Transnational Corporate Damages: Comparative Advantage of ISDS as a Supplementary Mechanism

作為跨國公司在發展中國家造成環境及人權侵害（“跨國公司侵害”）的首要救濟方式，母國訴訟對原告而言存在管轄權和法律適用層面的諸多障礙，而其優化受到司法主權領土屬性的限制：國內層面，法院在跨國公司侵害救濟中的能動立場受到行政分支制約；國際層面，母國法院管轄權擴張對東道國法治存在消極影響。上述問題的優化上限使母國訴訟難以獨立化解跨國公司侵害的司法救濟困境。對此，應將ISDS作為母國訴訟的補充機制。ISDS基於國家合意，不存在領土局限，具有突破母國訴訟優化上限的潛力。具體而言，管轄權方面，東道國可通過合同仲裁直接向投資者追責，或基於投資協定提起反請求，不受不方便法院等原則約束；法律適用方面，ISDS將海外子公司視為投資而忽視其人格獨立，可將其侵害行為歸責於母公司，且對國際法的適用相較於國內法院更為自由。此外，ISDS對公共利益的關注還能減輕國際投資保護對東道國管制主權的鉗制，從源頭上減少跨國公司侵害。

As the primary remedy for environmental and human rights abuses caused by transnational corporations in developing countries (“transnational corporate damages”), home State litigation presents a number of obstacles to plaintiffs at the jurisdictional and law-application levels, and its optimization is constrained by the territoriality of judicial sovereignty: at the domestic level, the courts’dynamic stance on remedies for transnational corporate damages is constrained by the executive branch; at the international level, the expansion of the jurisdiction of home State courts has a negative impact on the rule of law in the host State. The above optimization barrier makes it difficult for home State litigation to independently resolve the dilemma of judicial remedies for transnational corporate damages, and investor-state dispute settlement (ISDS) should be used as a complementary mechanism to home State litigation. ISDS jurisdiction is based on the consent of the State, and has no territorial limitation, which has the potential to break through the optimization barrier of home State litigation. Specifically, in terms of jurisdiction, the host State can directly claim against investors through contractual arbitration or file counterclaims based on the investment agreement without being bound by principles such as forum non conveniens; in terms of application of law, ISDS treats overseas subsidiaries as investments and ignores their independence of personality, and thus their infringements can be attributed to the parent companies, and the application of international law is more liberal compared to that of domestic courts. In addition, the public interest focus of ISDS can mitigate the constraints of international investment protection on the regulatory sovereignty of host States and reduce transnational corporate damages at the source.