Research On Some Applications Of “the ILC Articles” In International Investment Arbitration

With the development of the global economy, the ICSID is playing an increasingly important role in solving international investment disputes. Due to the nature of protection of the private property rights by the international investment arbitration, the host country’s sovereignty and public interest always has a low protection. Some host countries that always be the defendant began to doubt the function of the international investment arbitration. Since the state responsibility is the legal consequences caused by the internationally wrongful acts, the determination of the internationally wrongful acts became the base of the state responsibility. The ILC Articles has clearly shown in article one that every country should be responsible for its internationally wrongful acts. And then in the article two, it points out the two elements: one is the act in accordance with international law belongs to the country, the other is the act constitutes a violation of its international obligations. The investors can quotes the ILC Articles to claim their legitimate rights and interests which was infringed by the host country. The host country also can quotes the ILC Articles to remove its responsibility. All of these has provide a method to solve the crisis.In the practice of the international investment arbitration, many cases have referenced the ILC Articles as the customary international law or the general legal principles. But whether the ILC Articles is the customary international law or not is still a question and the ICSID has formed a certain default in it and didn’t explain more. Compare the international investment arbitration with the WTO we can clearly found that the ICSID doesn’t pay attention to reason analysis and use the draft directly by recognized it as customary international law or general principles of international law. On this issue, WTO does many analyses and then discuss whether the elements are satisfied or not. The realistic significance of this problem is because that the arbitration tribunal has different attitude on the status of the draft, the dispute has in a critical situation by the necessity and the NPM and the final result was opposite although in similar cases. As a defense of the host country to exclude their internationally wrongful acts, the necessity has a strict standard. The purpose is to prevent the country to evade international responsibility. Therefore, in the absence of NPM terms, the host country may be at risk if he cannot use the necessity successfully. This promotes the development of the NPM clause in a certain extent.