Research On The State-Owned Enterprises As Claimants In The International Investment Arbitration

Sovereign investment is an important role of international investment,and state-owned enterprises are one of the main ways of sovereign investment.In recent years,state-owned enterprises have witnessed significant growth in scale,quantity and influence.However,state-owned enterprises are generally concerned about the status of"qualified investors" by host governments and nationals because of their special government background.These concerns focus on national security and the economy.The host country's concern about state-owned enterprises makes the state-owned enterprises face the risk of failure in the stage of investment access due to the problems of politics and national security.It may also be treated unfairly in the investment arbitration stage after the dispute.The international investment dispute settlement center is an important solution for investors and host countries to settle the disputes?State-owned enterprises must be "investors" in the investment agreement if they want to file an investment arbitration in the ICSID center.Though the ICSID convention and BITs and other international treaties define "investors"is generally not explicitly exclude state-owned enterprises,but the state-owned enterprise is "private investors" status in the international treaties and international investment arbitration practice is not clear.At present,the international investment arbitral tribunal mainly use the Broches standard and the national behavioral attribution principle to judge this.The core of the Broches criterion is that unless a state-owned enterprise "act as a government agent" or "performs a basic function of the government",it is acceptable for it to file an arbitration claim.The core of the national behavioral attribution principle is that if there is evidence that the state use its ownership or control of state-owned enterprises for a specific purpose,it can be attributed to the state.In practice,the host country often overquestions and misuses the status of investors of Chinese state-owned enterprises because Chinese state-owned enterprises are agents of the Chinese government or perform government functions,which seriously affects the legitimate exercise of the legitimate rights of Chinese state-owned enterprises to invest abroaa.Therefore,on the one hand,Chima's state-owned enterprises must strengthen their own construction and constantly improve their own normative and competitive power.On the other hand,the Chinese government will also be necessary to perfect the domestic laws,and actively participate in the international rules.In this way,we can create favorable conditions for our state-owned enterprises to protect their investment rights.