Research On ICSID Jurisdiction

With the fact that China, as a contracting state of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter called the Convention), has provided ICSID arbitration clause in some bilateral investment treaties (hereinafter called the BIT), attention should be paid to the ICSID jurisdiction.Chapter 1 is about ICSID jurisdiction in general. From the text of article 25 it follows that three requirements must be fulfilled to bring a case before the judiciary of the Convention. First, a legal dispute arises directly out of an investment. Second, the dispute is between a contracting state and a national of another contracting state. Thirdly, the parties have consented in writing to submit the dispute to the ICSID.Chapter 2 analyzes the meaning of a contracting state and a national of another contracting state. The latter is more complicated, especially the issue of the nationality of a juridical person. From four relevant awards, the issue of foreign control can be bypassed through the construction of investment and the Convention leaves a hole which can be exploited by domestic investor. Besides, customary international law requires continuous nationality to the time of resolution.Chapter 3 discusses the effect and form of the consent to ICSID arbitration submitted by the parties. A crucial attribute of consent is its irrevocable nature once given. In practice, consent of the host state is mainly fulfilled through BITs, while the consent of the investor is normally given by means of a request to the ICSID proceedings.Chapter 4 discusses the nature of the dispute. Investors'claims can be divided into contract claims and treaty claims. Although treaty claims are different from contract claims, sometimes issues of contract claims might be relevant in deciding treaty claims. On the one hand, ILC's Draft Articles on Responsibility of States for Internationally Wrongful Acts can support investors'treaty claims. On the other hand, generic dispute settlement clauses, umbrella clauses, MFN clauses could be used to bring contract claims.In the end, I apply the aforementioned analysis to a typical example.