On The Principle Of Exhaustion Of Local Remedies

The exhaustion of local remedies is an effective way to resolute the international investment disputes. This principle obtained fully approval not only from the general international law reprudences, but also from various countries' practice, the international legal precedent as well as International organization. But to the 1980s specially in the 90s until now, following the development of global economic, the exhaustion of local remedies meet the chanllenges from the theory of investment liberalization, attenuated foreign capital jurisdiction of the host country and so on. In the international legislation and the judicial practice, we also lack the analysising of this principle. With the international investment rapidly expand, how to regard this change, whether we shoule emphasis this principle, these questions have to be resolved.From analyzing the various countries' domestic legislation, the bilateral investment treaties,the multilateral treaties and the related International organization's cases, this thesis concludes that in the contemporary international investment dispute solution, the exhaustion of local remedies still to have the widespread applicability.This thesis is divided into six parts.The first part, comparing the domestic and foreign viewpoint of the exhaustion of local remedies, analysis definition by the foreign and domestic recrudesce, and take the principle at the international investment dispute .The second part, analyse the theory basis of the exhaustion of local remedies. From the theory basis's origin, the development, as well as the powerful support to the exhaustion of local remedies, pointed out that this principle have the full theory basis: the traditional domestic possession jurisdiction principle, international common law rule, the calvo doctrine and the natural resource's permanent sovereignty doctrine.The third part, explain the legal characteristic of the exhaustion of local remedies. Embarks from the international investment dispute's characteristic, analyses the subject, the suitable host country law procedure, to examine the level, the deadline, as well as suitable exception.The fourth part, accrue the particle of the exhaustion of local remedies in the international investment dispute. First, elaborated various countries, regardless of the domestic legislation or the bilateral multilateral treaties,conventions, this principle have the widespread serviceability. Then, the union World court's ELSI document and ICSDI for Settlement of Investment Disputes's a series of cases, conclude the different view of the devolping and devoloped countries.The fifth part, the thorough analysis the advantages and disadvantages of the exhaustion of local remedies, pointed out this principle is benefit for maintaining the host country benefit, protecting the foreign investor legitimate rights and interests, convenient for the parties and avoiding the international friction; On the other hand, analyse prejudice from developed-countries.The sixth part, explain the law of China about the exhaustion of local remedies, and propose to insist this principle. On the other hand, we have to become flexible after join the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.