A Study On The Inconsistency Of ICSID Arbitration

The International Center for Settlement of Investment Disputes (ICSID) is the most important vehicle for settling international investment disputes arising from investment between a host state and foreign investors. Compared with ICJ and international commercial arbitration, ICSID arbitration has its unique features. Usually, disputes ICSID handles are of public nature such as certain administrative measures related with public health, finance security, environment, etc., which often raise wide public attention. Therefore, it is necessary for ICSID to render awards fairly and consistently. Recent years, however, have seen a large number of inconsistent awards rendered by ICSID which exposed certain defects existed in ICSID mechanism and its investor-friendly system design has thrown ICSID into a crisis of legitimacy. This thesis will make a study on these "inconsistent awards" and try to explore the root-cause behind the phenomena coupled with extensive ICSID cases, BITs and model BITs. Finally, introduces the proposals made by ICSID itself and scholars aiming to eliminating such inconsistency and making an analysis about them.This thesis is divided into five Chapters. The first Chapter introduces the background of this thesis, i.e., legitimacy crisis that ICSID has, cause of pursuing ICSID "consistent awards" in terms of unique features of ICSID and consequences resulted from such "inconsistency" and how the investment practice in China associates with ICSID. The second and third Chapters are case study of inconsistency problem in terms of procedure aspect and substantive aspect, which involving clauses such like:most favored nation treatment, umbrella provision, fork-in-the-road provision, indirect expropriation, fair and equitable treatment and non-precluded measures provision. The Fourth Chapter is the focus of this thesis, which deals with the root-cause of the inconsistency problem from aspects of arbitration jurisprudence and ICSID system design based on the case study. The fifth Chapter introduces the proposals made by ICSID itself and scholars aiming to eliminating such inconsistency and makes an analysis about them as well as making recommendations for China to better cope with this situation. The last is the conclusion of this thesis.