Study On The Expedited Procedure In The Investor-State Arbitration

In order to enhance the efficiency in the proceedings of arbitrationcases, and to avoid unnecessary time and cost expenditure, the PreliminaryObjection of Manifestly without Legal Merit and the correspondingExpedited Procedure has been created in the2006amendment of ICSIDArbitration Rules. At the same time, the United States has formulatedsimilar arbitration procedure, based on the predicament in a real case-i.e. incorporating the Preliminary Objection of "an award in favorcannot be rendered as a matter of law" and corresponding ExpeditedProcedure into the negotiations of investment protection agreementsgradually after2002. And part of the above agreements has alreadyincorporated such arrangement.This article will base on the above Preliminary Objection andcorresponding Expedited Procedure. The basic principles of the Scienceof Construction of Law is adopted to review and study the rule-makinghistory and the objective of the above Preliminary Objection andcorresponding Expedited Procedure in the investor-state arbitration; Themethods of Empirical Analysis and Comparative Study are applied, combinedwith the investor-state arbitration precedence involving Expedited Procedure, to ascertain the basis for judgment, the extent of reviewingand the standard of sustaining an objection in the examination proceedingof the objection; The relevant data retrieved from real cases arecollected and analyzed to compare the efficiency and expense of a caseinvolving Expedited Procedure with that of a case without adoptingExpedited Procedure; Theory and Practice are also combined to ascertainthe specific contents, basic requirements, practice significance andimprovable aspects of such Expedited Procedure systems, and to analyzethe possible admissibility of such Expedited Procedure systems to PRC indetail.After compare, it is clear that: although there are slight differencesbetween the two Expedited Procedure systems, there is no substantialdifference in the elements for raising an objection; both of the ExpeditedProcedures can be triggered by the Preliminary Objection based oncompetence reasons; both of the Expedited Procedures require that thereview of the objection shall mainly focus on the matter of law andassumptions shall be made concerning the matter of fact; both of theExpedited Procedure systems are concerned on the balance of efficiencyand justice in the procedure of decision making.After analysis, it is confirmed that, when Expedited Procedure isapplied: the procedural time consumption will be diminished, theefficiency will be increased and the expense will be reduced in thecircumstance that the Preliminary Objection is fully or partly sustained;the procedural time consumption will not be substantially affected andthe expense of the parties in relation to the case will not be dramaticallyincreased in the circumstance that the Preliminary Objection is overruled.The objective of this newly created procedure, as Expedited Procedure,will generally be achieved.After research, the innovation of Expedited Procedures triggered by the Preliminary Objection based on competence reasons and substantive lawbasis respectively are clarified: explicit time limits and creation ofprocedural right for the parties respectively. Meanwhile, possibleimprovement suggestions are provided based on their specifics.Finally, suggestions are provided for the adoption possibility andincorporating method of the Expedited Procedure clause in the draftingof the "dispute settlement between investors and host countries" clauseunder the investment protection agreement when PRC is a contracting party.At the same time, it is aimed to help the PRC as the respondent in a case,as the case may be, to exploit the relevant rules so as to protect theirlegitimate rights, and to help the outbound investors from PRC as theclaimant in a case, as the case may be, to fully understand the relevantrules so as to safeguard their legitimate rights.