Research On Qualified Applicants For State-owned Enterprises In ICSID Arbitration

State-Owned Enterprises(SOEs)have been widely focused in the field of international investment recently,so this paper attempts to choose the problem of qualified applicants for SOEs in the ICSID arbitration as research topic.As the investment made by the SOEs are increasing currently,some developed countries in the western world are alert to it.For example,the United States and some other capitalist countries begin to take discriminatory measures against the investment made by Chinese SOEs.Also,many host states of foreign investment are concerned about the characteristics of SOEs.Hence,investment disputes related to SOEs may arise and the obligations under the international investment law may be violated.Under this circumstance,ICSID arbitration can be a mechanism for dispute settlement.However,as SOEs have special connections with states,which are different from normal investors as well as host states,the complexity of any dispute may probably be deepened and the application of law on the original international investment agreements and investment arbitration mechanism may be highly influenced.Under the current ICSID arbitration mechanism,this paper focuses on the issues of qualification of SOEs and the application of law on the international investment agreements and the ICSID Convention concerning SOEs.This paper is concerning on the difficulties and the reasons of protecting foreign investment made by the SOEs,the potential innovation of relevant rules and the reaction of China are described.This dissertation consists of four parts apart from introduction and conclusion.Part one mainly describes the legal restriction of ICSID on SOEs,as qualified applicants.At present,with the increasing significance of SOEs in international investment,more and more countries pay attention to the investment made by the SOEs.Under the current dispute settlement mechanism,ICSID mechanism is adopted by more and more countries,but there is no specific standards concerning the qualification of SOEs in arbitration practice.Part two analyses the causes of the issue on SOEs,as qualified applicants,in ICSID arbitration.It illustrates that the fuzziness of international investment agreements,the impact of the concept of state capitalism and the change of application of supervising standards are the causes.Part three discusses the solutions of the issue on SOEs,as qualified applicants,in ICSID arbitration.It demonstrates that the strengthening SOEs rules of international investment agreements,the improvement of rules concerning SOEs and the reference to the mechanisms of competition,Broches Standards,the principle of attribution by state actions reflected on the Draft articles on Responsibility of States for Internationally Wrongful Acts are the possible solutions,for the purpose of offsetting the defects of ICSID mechanism and thus preserving the rights and interests of SOEs in international investment.Part four is about the enlightenment for Chinese SOEs in going abroad.On the basis of the current status of outbound investment made by Chinese SOEs,it describes the governance of SOEs,the existing BITs should be revised and make full use of third party participation mechanism.The main point of view of this paper is that the standards on differentiating the actions conducted by SOEs are not accurate and effective in current ICSID arbitration.And the protection of SOEs in investment arbitration is always ignored by international investment agreements.Actually,the forms or numbers of SOEs in international investment were not huge and complex when the ICSID Convention was signed.In addition,different countries have different attitudes towards SOEs.Accordingly,for the settlement of the investment disputes concerning SOEs,international investment agreements and ICSID arbitration mechanism should be reformed,so as to satisfy the needs of both home states and host states brought by the investment of SOEs.This issue should not be settled by the tribunals after any dispute arises.Under that conditions,the tribunal may determine the commercial characters of actions of SOEs.