The Research On State Immunity In The Enforcement Of The ICSID Arbitral Awards

The International Center for the Settlement of Investment Disputes(ICSID),established under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States(the "Washington Convention"),is the exclusive agency through which arbitrations and conciliation may solve international investment disputes and the arbitration.The fact that the ruling was rejected at the application execution stage because of the issue of state immunity has,affected the effectiveness of ICSID arbitration.As a signatory to the "Washington Convention",China will also face the issue of state immunity in the enforcement of ICSID arbitration awards.This paper systematically studies this issue and divides it into four parts that are intrinsically linked:The first part defines ICSID arbitration ruling and demonstrates the emergence of the issue of state immunity in its implementation.The ICSID arbitration ruling involves a dispute over direct investment between a national of a State party to the Washington Convention and the other contracting parties,which distinguishes it from general international commercial arbitral awards.In order to guarantee the successful implementation of the ICSID arbitration award,the Washington Convention provides for a series of effective measures,including excluding the judicial review of the arbitral award in the country to which the arbitration is administered and the legal consequences of non-performance of the rulings to be imposed by the host country's courts.As one of the parties to the ICSID arbitration award is a sovereign state,the principle of state immunity as a customary national law is universally accepted by the international community.Therefore,it is inevitable that the State immunity will be inevitable in the implementation of the award when it comes to the enforcement of state property.Part two explores their respective impact on the enforcement of ICSID arbitration awards based on an analysis of the stand-offs of absolute immunity and doctrine of restrictive immunity.Absolute immunity theory claims that unless the state voluntarily renounced the exemption,its behavior and property are not subject to the jurisdiction of any foreign court;The doctrine of restrictive immunity holds that state immunity is not absolute.It is necessary to analyze the behavior of the state,and that the sovereign act enjoys immunity,rather than the non-sovereign act,which cannot be exempted.Taking the former position will make the ICSID arbitration award into an impractical impasse,while adopting the latter position will greatly enhance the possibility of enforcing the ICSID arbitration award and help to protect foreign private investors.The Washington Convention does not provide any uniform rules on the issue of state immunity,and this issue is referred to the domestic laws of all the contracting states.Because some of the relevant domestic laws of the contracting states to the convention adopt the absolute immunity theory and some adopt t doctrine of restrictive immunity,it leads to the uncertainty of the enforcement of the arbitration award.In general,the domestic law of the parties to most of the conventions adopts a position of doctrine of restrictive immunityThe third part expounds some important aspects of the practice of state immunity in the enforcement of ICSID arbitration awards.In the implementation of the ICSID arbitration award,it is very important to identify the state property which enjoys immunity from execution.For states that voluntarily waive their state immunity from execution of the exemption and for state property that is used for commercial purposes in a state which restricts the exemption,measures may be taken to enforce it;and all states also agree that state military property,bank property,cultural heritage,etc.are entitled to exemption from execution.In order to achieve the ICSID arbitration award,foreign investors tend to choose other states parties with the property of the host country to apply for the enforcement of the ICSID arbitration award.At this point,whether the host country's plea of state immunity can be adopted or not is often determined by the position and specific rules of the state immunity in the domestic law of the country being applied.The fourth part argues the countermeasures of our country on the issue of state immunity in the enforcement of ICSID arbitration ruling.At present,there is no specific legislation on state immunity in our country's domestic law.However,our country has repeatedly reiterated the government's position of absolute immunity in relevant practice.The establishment of this position has specific historical reasons and background.However,in the new international environment and while foreign investment has been heavily accepted by our country,overseas investment has also risen sharply.The international investment disputes have been handed over to ICSID for arbitration and settlement.The international investment dispute arbitration ICSID delivery conditions have increased,adhere to the absolute immunity will make our country into trouble in the implementation of the ICSID arbitration awards,is not conducive to the protection of citizens of our country and our country's legitimate rights and interests.Therefore,it is necessary to adjust our country's position on state immunity,change from absolute immunity to limited restrictive immunity,and formulate the State Immunity Act of People's Republic of China as soon as possible in line with this position.