A Study Of Jurisdictional Problems In International Investment Arbitration

The establishment of jurisdiction is the fundamental basis and precondition for an international tribunal to resolve the dispute between foreign investor and the host State,and the discussion about jurisdiction is exactly the central topic which is hotly debated among the field of the theory and practice.With the enrichment of the participation of Chinese overseas investors and the government of China in investment arbitration,it is necessary to reflect and respond the various aspects on the arbitral jurisdiction.This article chooses the current change of international investment law and practice as the pointcut,takes the jurisdiction as the main clue which goes through the whole text,analyzing the spring up of international investment arbitration,the start of the proceeding,the jurisdictional conflict,the jurisdictional objection during the proceeding,the jurisdictional review after the award was made,the latest development and China's position on investment arbitration separately,hoping to think about the jurisdictional issues of international investment arbitration in a comprehensive and systematic way.In addition to the introduction and conclusion,the body of the dissertation consists of seven Chapters,totaling 250,000 words.The introduction is the summarization and integration of the thesis proposal,which explains the research topic,purpose and significance,review of status research,the reasons,methods and innovations of this thesis.Chapter One is entitled Definition Issues of Jurisdiction in International Investment Arbitration,consisting of three sections as follows: Section One elaborates on the status of investment arbitration in the various methods to resolve investor-state disputes.To be specific,according to the logic doctrine per genus et differentiam,the author firstly clarifies the upperseat concept of investment arbitration,then compares it with some other relevant methods.Section Two explores the etymology of jurisdiction,then pointing out the difference between jurisdiction and admissibility,with a brief description of the evolution of the competence-competence principle.For the convenience of a deeper analysis,Section Three divide the treaty-base claim and contract-based claim according to the cause of action.Chapter Two deals with the Treaty Basis for International Investment Arbitral Tribunal to Establish Jurisdiction,which summarizes the traditional legal rules and current practice,and extracts different jurisdictional issues at the start of the proceedings.Section One attempts to arrange the jurisdictional rules in a systematic way,including jurisdictio ratione personam,jurisdictio ratione materiae,jurisdictio voluntatis,jurisdiction temporis.Section Two and Section Three analyze ICSID arbitration jurisdictional rules and non-ICSID arbitration jurisdictional rules respectively.To review and reflect the enlarging trend of jurisdiction in the practice of investment arbitration,Section Four discusses the phenomenon and the necessity of limit from a perspective of procedural balance.Chapter Three is entitled The Jurisdictional Overlap and Its Solutions in International Investment Arbitration,which is aimed at discuss the new problems in the coexisting context of economic globalization and regional integration.In recent years,the fragmentation and diversification of international investment law has gained much attention.Considering this phenomenon and its implication,this chapter deals with the causes,patterns and possible solutions together,and proposes pluralistic measures which may be taken by the tribunal.Chapter Four,the core of the dissertation,is The Jurisdictional Objection and Its Determination during The Procedure of International Investment Arbitration.This chapter starts with some frequent objections,and discusses a few troublesome questions which demand prompt solutions.Through the author's analysis,unless the applicable BIT stipulates a narrow and restrictive ISDS clause,in principle,the tribunal may exercise jurisdiction over the respondent State's counterclaim;with regard to the disputes arising from unclean investments gained by corruption,it is more appropriate to classify it as a question of admissibility rather than jurisdiction;when the parties raise pleading or claims over human rights,as long as it falls within the consent of arbitration,and meets the jurisdictional requirements in Article 25 of the Washington Convention and ISDS clause of BIT,the tribunal may determine whether it will adjudicate such claims by its own motion.Chapter Five focus on the jurisdictional review after the award has been made,Section One differentiates annulment procedure from non-enforcement procedure.After clarify the distinction between ICSID and non-ICSID investment arbitration,Section Two reflects on the historical evolution of ICSID annulment procedure,which rethink the ad hoc committee's attitude over the scope of review on the tribunal's jurisdiction.As to the enforcement of investment arbitration,there are three different scenarios on the legal source to apply,i.e.,the Washington Convention,the New York Convention,lex fori,the mainstream is to adopt the value of supporting arbitration and respect the tribunal's decision of jurisdiction,in order to preserve the procedural consistency.Different from the foregoing chapters which take the arbitral proceeding as the logic axis to deal with jurisdictional issues,Chapter Six focus the latest development and overall transmission of international investment dispute settlement.Of course,there are two views coexist with each other: on the one hand,the caseload of investment dispute keeps raising,more and more parties choose investment arbitration as the resolution method;one the other hand,however,owing to the drawbacks of traditional ISDS mechanism,some scholars criticize the legitimacy of investment arbitration.Some Latin American states just withdraw from the Washington Convention.At the same time,the Brexit also raises new problems and challenges for the tribunal to determine jurisdiction.Excepting this,both EU and US attempt to construct new order of investment law.The Investment Court System of EU has already been incorporated into the draft of TTIP,and CPTPP also has special articles on investment arbitration,which must be read in detail for the purpose of negotiating China-EU and China-US BIT.Chapter Seven is Chinese Practice and the Manifestation of China's Standpoint in International Investment Arbitration,which is aimed at describing China's experiences in concluding BITs and participating in arbitration cases.In this chapter,Section Two,Three and Four discuss separately on the following issues,i.e.,the interpretation of restrictive ISDS clauses in BITs,the application of Chinese BITs in Hongkong and Macau,the preliminary objection procedure in ICSID and the jurisdictional review during such kind of procedures.It deserves full recognition that Chinese parties take part in investment arbitration cases actively and make full use of jurisdictional objection which is beneficial for its interests.At the same time,Chinese arbitration institutions need to enlarge its jurisdiction over investor-state cases,the CIETAC Investment Arbitration Rules is a good example,but its implementation need to be reconciled with Chinese Arbitration Act.