| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === Among the arguments arose from sovereign wealth funds’ activities, this thesis chooses to focus on the reflection of the arbitrability of their investment disputes. After reviewing their very existence, we could easily discover that there are wide diversities on their definition, legal basis, purpose, management mode and transparency. By spontaneously following the Generally Accepted Principles and Practices (GAPP), also known as the Santiago Principles, some members of sovereign wealth fund community are ceaselessly trying to establish mutual confidence among them and host states, thus host states might gradually be willing to consider to lift their hostile regulations. Furthermore, through the observation of the transparency of sovereign wealth fund, it appears that GAPP might have a positive effect on the bigger picture.
In Taiwan, the issue about should we embrace the concept of sovereign wealth fund or not, is always highly controversial. In July 2016, National Development Fund has established a NT100 billion Industrial Innovation and Transformation Fund. According to National Development Council press release, its goal is to stimulate private sector investments, promote innovation and transformation, create job opportunities, and reinvigorate Taiwan’s economy. Along with private sector investors, this fund will invest in merger and acquisition, spin-off, and business transformation plans. From its purpose and behavior pattern, this thesis believes this fund is quite similar to the mainstream understanding of sovereign wealth fund. Along with the national-level investment company which is about to be established, their investment activities shall be able to provide us with lots of research materials in the foreseeable future.
After reviewing and analyzing relevant international conventions, legislations, opinions of courts and authoritative scholars, we may find that when it comes to the political and sovereign capacity of a state, public interest is the core concept of the legal grounds for contesting the arbitrability. Without prejudice to the development of international trade and arbitration system, legislator and court may have broad decision-making space.
Owing to the diversity of the existence of sovereign wealth fund and the unsettled arguments over the arbitrability of public interest cases, this thesis argues that the issue about the arbitrability of sovereign wealth funds’ investment disputes shall not be determined through any single standard. Furthermore, in order to reach a full-scale conclusion, this thesis intends to propose a multivariate index with seven or six evaluation bases. Through flexibly applying this index, legislator and court may make a proper decision on when the arbitral tribunal will be able to meet the need for democratic legitimacy without losing the benefit of establishing this institution at the same time.
Back to the current situation in Taiwan, owing to the society has a deep distrust of this institution, the author suggests that we should not allow the fund to have broader decision-making space as regards the arbitrability until the system is mature.
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