Remark Of The Decision On Jurisdiction In The Case Group Co.ltd.v.public Of Yemen

On May 31,2017,the official website of The International Center for Settlement of Investment Disputes(hereinafter referred as ICSID)announced the jurisdiction decision of the Beijing Urban Construction Group Co.Ltd.(hereinafter referred as claimant)verses Republic of Yemen(hereinafter referred as respondent)(hereinafter referred as The Case)and rejected the Respondent's objection to jurisdiction,believing that the ICSID has jurisdiction over The Case.I extract the basic structure of the jurisdiction under Article 25(1)of The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States(hereinafter referred as The convention)in The Case,the three major issues of jurisdictional disputes.The first is the identification of the private investor in a state-owned enterprise.The second is the provision over the consent to apply to arbitration in ICSID,whether the dispute on the amount of compensation for expropriation contains compensation for expropriation itself;The third one is whether the overseas investment projects is the qualified investment.The study of the basic structure of jurisdiction in The Case is not only provides reference for Chinese enterprises in coping with similar disputes,but also provides reference for the Chinese government in signing or revising bilateral investment agreements.The first chapter introduces the background of The Case.It also includes three parts.The first one introduces the factual background of The Case,including the summary,the petitions of both parties and the final decision of the arbitral tribunal's.The second part introduces the legal background,including the introduction ICSID,The Convention and it's provisions on jurisdiction.After knowing about The Case and the legal background,the third part is to refined the three major issues concerning the jurisdiction of The Case and arranged the three major issues in solely separate chapters for discussion.In the second chapter,I discussed the issue of the eligibility of private investors in state-owned enterprises.First of all,I discussed the legal background in international investment law of the issue,then to discuss the decision of The case and do some of remarks in it,finally,I got some conclusions in the issue.In the third chapter,I also states the background and history of the provision which relate to the consent to apply to arbitration in ICSID,the following writing method is similar with chapter 2.In the fourth chapter,I discussed the qualified investment of overseas contracted projects.This chapter is also divided into three parts.Similarly,the first part introduces the applicable law of the issue and the second part analyzes the decision,In the end I made an final conclusion.In the end,I think that ICSID is inclined to protect the interests of investors and has the tendency to expand the jurisdiction of itself.And the tribunal of ICSID will show the following thinking on the jurisdiction of the three issues in The Case.Firstly,the tribunal will apply the Broches standard on the issue of the qualified investor.And as long as the state-owned enterprise investors fully reflect their role in neutral competition and play their commercial functions in the process of foreign investment,the tribunal will recognize the qualifications of private investors in state-owned enterprises;As to the second issue,The tribunal considers that the expropriation dispute can be submitted to ICSID through the interpretation and analyses in text and system,but it completely ignored the real intention of the provision,and it shows its tendency to expand jurisdiction of ICSID;On the other hand,the tribunal will adopt a double standard on the qualification of overseas project.However,if the investment is not stipulated in the bilateral investment agreement,the tribunal will apply the Salini standard and it always conclude that overseas project meets the condition of investment in The Convention.In a word,I suggested that Chinese state-owned enterprises should take a role in the neutral competition for overseas investment and play their commercial functions;the Chinese government should make the provisions of bilateral investment agreements clear when signing or revising bilateral investment agreements,such as the clear of definition in overseas project contracting in investment and clear of whether disputes over expropriation can be submitted separately to the ICSID.