Research On The Requirement Of "Consistent With The Host State Law" In The Definition Of Investment Under Bit

"Consistent with the host state law" is a common expression in the defining clause of BIT. The investment consistent with the host state law is an important condition to determine whether an investment has been established, and it is also one of the elements of the arbitration tribunal to exercise jurisdiction over relevant cases. Most countries have added the provision of "consistent with the host state law" in their BITs. But they have not made a detailed explanation to the meaning of "consistent with the host state law", which led to different understanding of the concept in investment arbitration.In order to objecting the jurisdiction to the ICSID, some Respondents alleged that the disputed investment does not consistent with the host state law in ICSID arbitration. Since the Salini v. Morocco case, ICSID tribunal had given positive answer to whether the requirement of "consistent with the laws of the host country" is necessity to the jurisdiction of the arbitral tribunal. In subsequent similar cases, most tribunals followed this case in the decision of jurisdiction. However, there is still no common consensus about the meaning of "consistent with the laws of the host country". The academics made no further explanation to the violation standards and violation degree of such principle. In practice, ICSID tribunal held Different attitudes to the related requirement which led to in consistence of arbitration cases results.As most BITs of China contains the provision of "consistent with the host state law", the study of such principle seems to be necessary to our country. The relationship between this principle and arbitral jurisdiction directly decides whether the ICSID could excise the jurisdiction, which has the vital meaning to China since China plays the roles of investor’s home country and the host state nowadays.This paper includes four chapters:Chapter one is the introduction of requirement of "consistent with the host state law" in BIT. Firstly, it states the relationship between investment and ICSID jurisdiction, then introducing the principle of "consistent with the host country law" through analyzing the definition of "investment" in BIT; lastly, by introducing how the principle of "consistent with the host country law" is stipulating in BIT, the author would analyzing the legislation pattern of such principle.Chapter two is the analysis of the judgment of related cases in ICSID arbitration practice. Through studying the cases, the author first analyze the definition of "consistent with the host state law" from the aspect of international and domestic law; then the author will sum up the specific criterion of "consistent with the host country law" after analyzing the scope of the "host country law".In chapter three, the author tried to evaluate ICSID arbitration practice based on the analysis of Chapter two, summarizes the different interpretations of the arbitration tribunal of ICSID considered the principle, and how it effects to contracting country and the arbitration tribunal practice.Chapter four discussed the enlightenment of the issued to China. Given the ICSID arbitration tribunal have difference interpretations to the requirements of "consistent with the host state law", the author tried to give the improving suggestions to the BITs of China by studying the principle under Chinese BIT legislation and the practical issues in the Sino-US BIT negotiations.