国企在国际投资调解中面临的挑战及法律应对

中国的国有企业在走出去过程中与东道国之间的投资争端日益频发。投资仲裁是国企解决国际投资争端最主要的方法。然而，国企运用投资仲裁上存在长时间、高金钱的投入和高败诉率的困境。《联合国关于调解所产生的国际商事和解协议公约》的生效给投资调解带来重大发展机遇。投资调解将成为投资仲裁的重要补充，为国企解决国际投资争端提供有效的替代性解决方法。国企因其产权的特殊性在使用投资调解上将面临一系列的法律挑战，如当投资调解的结果使国企的实收账款远少于应收账款时，国企可能被指控造成国有资产的恶意流失或存在腐败行为。为有效应对上述法律困境，应提高国企对投资调解的认知和接受，建立国企参与投资调解的科学评估制度，设立国企投资调解报告制度以及推动公正有效投资调解机制的构建。

Challenges Encountered by Chinese State-owned Enterprises in International Investment Mediation and Legal Solutions

Chinese state-owned enterprises (SOEs) face an increasing number of international investment disputes with foreign states during their foreign investment activities. International investment arbitration is the major approach used by SOEs to solve international investment disputes. However, SOEs are encountered with the dilemma of spending a substantial amount of time and money and facing a high rate of failure by resorting to the international investment arbitration mechanism. The coming into force of the United Nations Convention on International Settlement Agreements Resulting from Mediation on 12 September, 2020 brings great opportunities for the development of investment mediation. Investment mediation will become an important alternative to arbitration, providing an effective alternative for SOEs to solve international investment disputes. However, due to their property right structure, that is, being partially owned by the government, SOEs will face a lot of legal challenges in the use of this approach to solve international investment disputes. For instance, when the mutually agreed mediation agreement renders the sum of accounts received by SOEs far less than that of the accounts receivable, SOEs may be held responsible for the loss of state-owned assets and be accused of corruption. In order to effectively cope with such challenges, it is advisable to take effective measures to raise the awareness and acceptation of SOEs about investment mediation, establish a reasonable appraisal system for SOEs’ use of investment mediation, set up SOEs’ reporting system concerning investment mediation and promote the establishment of fair and effective investment mediation mechanism.