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Progress in Social Sciences
ISSN Print:2664-6943
ISSN Online:2664-6951
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ISDS机制下税收仲裁裁决不确定性的制度根源及中国对策
The Institutional Roots of Award Uncertainty in ISDS Tax Arbitration and China’s Response
- Authors: 高慧萍
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Information:
华东政法大学，上海
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Keywords:
Investor-State Dispute Settlement (ISDS); Tax Arbitration; Unpredictability of ISDS; Tax Sovereignty; Structural Conflict投资者-国家争端解决（ISDS）; 税收仲裁; 裁决不确定性; 税收主权; 制度性冲突
- Abstract: The global campaign against base erosion and profit shifting (BEPS) is gaining momentum. Against this backdrop, tensions between cross-border investment activities and the tax sovereignty of host states have become increasingly pronounced. While the investor-state dispute settlement (ISDS) mechanism is frequently invoked to resolve tax-related investment disputes, the resulting awards exhibit considerable unpredictability. This phenomenon has attracted significant attention in the field of international investment law, and finding ways to strengthen investment protection without undermining state tax sovereignty has emerged as a pressing challenge.This article examines three landmark cases—the Yukos case, the Occidental case, and the Lone Pine case—which are widely regarded as exemplars in the realm of tax investment disputes. A thorough analysis of these cases reveals that the unpredictability of arbitral outcomes does not stem from the complexity of individual factual scenarios or from occasional exercises of tribunal discretion. Rather, it is rooted in a fundamental structural tension between the commercial arbitration framework of ISDS and state tax sovereignty.More specifically, this institutional deficiency originates from three interconnected factors. First, tax exception clauses are often drafted with ambiguous language. Second, arbitrators frequently lack specialized expertise in tax matters. Third, no coherent system of precedent has yet developed within ISDS. These elements interact to produce inconsistent arbitration results.Therefore, current reform proposals seek to address these concerns. The United Nations Commission on International Trade Law (UNCITRAL) has proposed a multilateral reform framework, while new-generation free trade agreements such as the Comprehensive and Progressive Agreement for Trans- Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA) have introduced “filtering mechanisms.” Although these measures have mitigated some surface-level conflicts, they fail to resolve the underlying structural tensions.It is widely acknowledged that China occupies a distinctive position in the international investment landscape as both a major capital importer and exporter. Given this dual role, it is essential for China to adopt proactive strategies that balance the protection of investor rights with the preservation of national tax sovereignty. 随着全球反税基侵蚀（BEPS）行动的深入推进，跨国投资与税收主权的冲突日益凸显，投资者-国家争端解决机制（ISDS）对税收投资争议的裁决呈现出显著的不确定性，如何在尊重国家税收主权的前提下完善投资保护机制，已成为国际投资法领域亟待回应的重要问题。本文将通过分析系列典型案例，揭示这种不确定性并非源于个案事实的复杂或仲裁庭的偶然偏差，而是深植于ISDS商事仲裁制度与国家税收主权之间的结构性张力。税收例外条款的模糊设计、仲裁员专业认知的局限、缺乏统一判例法体系等，共同构成了制度缺陷的深层根源。现有UNCITRAL改革框架及CPTPP、USMCA等新一代自贸协定的“过滤机制”虽试图缓解矛盾，却未能触及结构性冲突的本质。中国作为兼具资本输入与输出双重身份的大国，应采取积极的应对策略，以实现投资者权益保护与国家税收主权维护之间的平衡。
- DOI: https://doi.org/10.35534/pss.0802019
- Cite: 高慧萍．ISDS机制下税收仲裁裁决不确定性的制度根源及中国对策［J］．社会科学进展，2026，8（2）：97-104.
