ICSID Tribunals’ Interpretation And Application Of "ILC Draft"

Our government offered preferencial policies to the foreign companies through the first year,such as waiving land leasing and a number of tax relief.But as time goes on,we realize that foreign companies have some bad places.Some of the famous foreign companies distorts the relation of impartial competition and market price,which has caused heavy resource waste.And some of them failed to control the happening of safety accidents because of the violation of labor laws.And some of them pollute the environment deliberately.After joining WTO,we keep up on the preferential taxation policies without sticking to other preferential taxation policies.After the new Law on Corporate Income Tax was implemented and the tax of Enterprise Income is unified as 25%,we treat every enterprise equally.by the end of 2010,the tax system of the urban and rural safeguard construction duty and additional education fee were had been unified.With the reformation of economic structure and policies,the legal risks we face is increasing.The elimination of the preferential policies would well lead to lawsuits,as we all know in the cases studied in this paper. Suppose that the foreign companies filed a $1 billion lawsuit for payment to China,once lost,We would suffer financial damage,which brought the unexpected fluctuations of the market.The accusing of indirect takings or breach of contracts would be accepted by tribunals if state acts was identified as international wrongful acts,whether we can win the case,depends on the laws which the tribunal apply.Because the key questions such as the jurisdiction,the mental distress,the indirect takings,the indirect expropriation which relates to the compensation was ruled by the laws applied.ILC Draft is short for The International Law Commission’s Draft Articles On Responsibility Of States For Internationally Wrongful Acts.This Draft pass through the following stage by the International Law Commission:first read,second read and can be applied as international custom law and is very important when tribunals deal with international investment disputes.However,the draft is somehow general,fuzzy and out of date.I made a summing up of the case that "ILC Draft" be applied by the ICSID tribunals through studying a decade of the international investment disputes appealed to ICSID:First,implied agreement of applicable laws can cause the circumstance;Second,without the consent of both parties,the ICSID tribunals applied the "ILC Draft" directly.Tribunals had wide discretion in interpreting legal terms in applicable laws.Tribunals stayed on the side of the developed country,they showed a propensity for investors.Therefore,these questions that how the tribunals apply and interpret ILC Draft,how to avoid applying "ILC Draft",how to limit the wide discretion of the tribunals by interpreting key legal terms skillfully,are very important to answer.Many scholars consider that different tribunal interpret the same legal term very differently,this is worth discussing. From the point of view in the public international law, "ILC Draft" has been extended by many scholars all over the world,but there are few related research results about "ILC Draft"in standpoint of the international economic law. Therefore, Combining both, I try to find the general rule of interpreting and applying the "ILC Draft".