Study On Legal Issues And Counter-measures Of ICSID Arbitration

Since the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States came into force in 1966,the international investment arbitration system has had a 50-year history.However,investors rarely initiated investment arbitration to host countries for a long period of time,and the number of arbitration cases has witnessed an explosive increase in recent years.So far,107 countries have been the respondents for one or more of these cases.The number of arbitration cases filed by Chinese investors or involving the Chinese government still remains single digit.But what can be predicted is that more and more Chinese companies will face investment disputes and seek legal solutions as China continues to open its doors to the outside world and the pace of Chinese companies going abroad is accelerating.The case Ansung Housing Co.,Ltd.v.People's Republic Of China has exposed the problems and obstacles encountered by Chinese companies in overseas investment,where the arbitral tribunal dismissed all of the applicant's arbitration requests.In the ICSID arbitration practice,there were not many cases where the ruling rejected all of the applicants' arbitration requests,which was of particular concern especially in the current sensitive period of Sino-Korean relations.This article will focus on this case and study several major legal issues encountered by Chinese companies in overseas investment,and at the same time put forward some suggestions and solutions for Chinese companies.This thesis,is divided into four chapters structurally.The first chapter firstly escribes the process and influence of Ansung Housing Co.,Ltd.v.People's Republic Of China.And then it also presents a preliminary introduction of the controversial points in this case,which lays a solid foundation for further analysis.Finally,it points out three main legal issues according to this case.The second chapter focuses on applicable standard of the "summary dismissal" system in ICSID Arbitration Rule.This chapter first introduces the background and purpose of adding the system of "summary dismissal" Article 41(5)and elucidates its applicable standard.Subsequently,it makes a brief summary of different opinions owned by each party and the tribunal's decision,and puts forward some countermeasures correspondingly from the perspective of the investors and governments.The third chapter is about the time limitation of the arbitration in investor-state dispute.This chapter mainly explains the fundamentals and effectiveness of the time limitation of the arbitration in China-south Korea BIT.Additionally,it analyzes the respective views of the parties involved in this case based on the principles and methods of treaty interpretation in international investment arbitration.At the same time,it also puts forward some improvement suggestions for the interpretation of treaties in international investment arbitration and the decision-making of the Chinese investment agreements from the perspective of the tribunal and China respectively in response to the arbitration limitation issue.The fourth chapter is the application of The Most-Favored-Nation Clause in investment dispute settlement between foreign investors and host countries.This chapter begins with a brief background introduction of whether the MFN clause in the arbitration practice can be applied to the issue of dispute resolution,and whether the contention of MTN clauses in BITS is suitable for dispute settlement.Second,it analyzes the views of both parties on the application scope of The Most-Favored-Nation Treatment clauses in this case.Finally,it puts forward some proposals for the selection of bilateral investment treaties in the future,in response to China's practice of concluding bilateral investment treaties and the challenges it faces.