Study On Judicial Review System Of International Investment Arbitration

It is not a long time for international investment arbitration to be separated from international commercial arbitration,the judicial review of international investment arbitration is therefore deeply influenced by that of international commercial arbitration,and some countries directly apply the judicial review rules of international commercial arbitration to investment arbitration.This thesis thinks the judicial review system of international investment arbitration has its independent value and significancy.This thesis focuses on the features of international investment arbitration,develops its discussion according to the three main parts of the judicial review of international investment arbitration.In addition,this thesis also provides solutions for the difficulties and dilemmas faced by China while practicing judicial review of international investment arbitration.The first part is the overview of judicial review system of international investment arbitration.Judicial review of international investment arbitration is a judicial activity where the domestic courts check the international investment arbitration according to domestic law and international treaties.Because international investment arbitration is significantly different from commercial arbitration in aspects of the dispute parties,the ground of arbitration initiation,the value position and so on,the judicial review system of international investment arbitrations shall be different from the commercial ones.Substantially,the judicial review of international investment arbitration mainly includes three parts: judicial review of the arbitration agreement,judicial review of arbitration award,and judicial review of the admission and implementation of arbitration awards.By looking through the world situation,it is easy to find the jurisdiction power of arbitration tribunal obviously expands,arbitration approach has been abused by investor,and the regulation power of host countries is facing serious challenges.Therefore,the judicial review implemented by domestic court for investment arbitration is not only necessary,but also will promotethe healthy development of international investment arbitration and balance the interests between the investor and host country.The second part is the judicial review of the agreement of international investment arbitration.The implements and definition of ‘arbitration consent' in international investment treaty is very different from it in commercial arbitration,thus the judicial review of the agreement of international investment arbitration has its own features,which mainly are the substantial review and formality review.To be specific,formality review mainly includes the tests of whether the investment treaty satisfy the requirement of “sign and being effective”,and whether there is ‘arbitration consent'.The substantial review means the review of the implements of ‘investment',‘investor'and the interpretation made by the arbitration institution.With respect to China's judicial review practice,we only distinguish domestic arbitration agreement and international arbitration agreement,but makes no difference between international investment arbitration agreement and international commercial arbitration agreement.China can confirm the independency of the judicial review of international investment arbitration agreement by legislation,and give jurisdiction of this kind of review to the highest court in different provinces.The supreme people's court can make the uniform standard of the review.Meanwhile,we could improve the current report regulations,require the courts directly report the holding to the Supreme People's Court.The third part is judicial review of the award of international investment arbitration.The main approach of judicial review of the award of international investment arbitration is the revocation of the award.However,domestic court only has power to revoke the arbitration award who has same nationality,therefore,identification of the nationality of an award is the pre-request of the judicial review.When the party is not satisfied with the arbitration award,it can file an application to the court at the place of arbitration.Revocation system mainly includes the application of revocation,the cause of revocation and the legal result of revocation.Although different countries have different regulations about the revocation system,once an arbitration award has been revoked by the court at arbitration place,it usually lost the chance of being recognized in other countries.At present,neither does Chinahave any global arbitration place,nor have any institution and implement arbitration for dispute between investor and host country government.Moreover,China's law does not clarify the standard of the temporary arbitration and the award nationality.All of these facts are the obstacles for China's court to obtain the power to implement the judicial review of the international investment arbitration award.Given the facts above,China shall remove the trap stone on the domestic court's way of obtaining the power said above by approaches such as confirm the legal significancy of temporary arbitration,clarify the nationality of arbitration award by single arbitration place rule,and develop big cities like Shanghai as international arbitration place.Specifically,this thesis suggests bring temporary arbitration into free trade zone,and give the highest court in this area the jurisdiction of review of arbitration between investor and host country,with the judicial explanation given by Supreme People's court as guidance.The fourth part is about the judicial review of the recognition and implementation of the award of international investment arbitration.When a party refuse to carry out an international investment arbitration award,and the other party file an application of admission and implementation of the award,the said court accordingly obtains the power of judicial review of that award.By considering the different legal authority a judicial review is based on,the judicial review of international investment arbitration can be divided into three categories,judicial review based on New Convention,judicial review based on the Convention on the European Human Rights and judicial review based on principle of reciprocity.This thesis will take the judicial review based on New York Convention as an example,point out and conclude all the implements in such judicial review.It will also analysis the Sedelmayer case as the classic case in this field.Back to China,because we have made commercial reservation when China enter into the New York Convention,admitting and implementing arbitration award based on principle of reciprocity is not practical,our court are facing international law obstacles with respect to the admission and implementation of international investment arbitration.Given these facts,we could change the commercial reservation into commercial and invest reservation,thusprovide international law ground to the court.Meanwhile,we shall establish judicial review system by considering the subject of review,the procedure of the review,and the standard of review,encourage legal practitioners to conduct cases about recognition and implementation of the award of international investment arbitration,learn experience and skills in the field,spread China value and China conception.