試析《新加坡公約》商事保留條款與中國的對策

Commereial Reservation Clause in Singapore Convention and China's Response

《新加坡公約》的落地是多元化解決國際商事爭議的又一個里程碑。該公約第8條中的商事保留條款，著眼於爭議主體的商事性，也稱“公共機構保留”。由於工作組借鑒和延續了《紐約公約》中公共機構適用問題的做法，客觀上造成了《新加坡公約》商事保留條款和適用範圍在文義上的瑕疵，需要利用歷史解釋和體系解釋的方法澄清該保留的真實含義。《新加坡公約》可以適用於投資者──國家爭端解決機制中達成的和解協議，聲明商事保留的主觀目的與客觀效果並不一致，放棄商事保留更符合我國國家利益。我國不妨以更加開放的態度放棄商事保留，同時保持清醒，儘量完善必要的制度街接，為公約在我國的正式生效做好充分準備。

The launch of Singapore Convention is another milestone in the diversified resolution of international commercial disputes. The commercial reservation clause in Article 8 focuses on the commercial nature of the disputed subject, and is also known as ''public agency reservation''. As the Working Group had drawn on and continued the practice of the New York Convention with regard to the application of public agencies, it had objectively created a contextual flaw in the commercial reservation clause and the scope of application of the Singapore Convention, and the true meaning of the reservation needed to be clarified by means of historical and systemic interpretation. The Singapore Convention could be applied to the settlement agreement concluded in investor-state dispute settlement. The subjective purpose of declaring the commercial reservation is not consistent with the objective effect, and China's renunciation of its commercial reservation would be more in line with Chinas national interest. It might be advisable to renounce it with a more open attitude, at the same time remaining sober and trying to improve the necessary institutional links, so as to make adequate preparations for the formal entry into force of the Convention in China.