The Principle Of Abuse Of Process In International Investment Arbitration

Recently,as a legal basis of defense,the principle of abuse of process has been regularly appeared in international investment arbitration.In investment arbitration practice,the principle of abuse of process sometimes applies as a treaty interpretation instrument,invoked in interpreting jurisdiction requirements,or as a self-ruled principle,plays the role of restricting specified claims access to the arbitral tribunals.It can be said that although the applicability of the principle of abuse of process in the international investment arbitration is unquestioned,the status and application methods of this principle still need to be specified.Although It is difficult to generalize the concept of the abuse of process abstractly,the essential requirements still can be found in the application of this concept in domestic law and international law.To definite the abuse of process,it inevitably requires to make value judgement on the procedural behavior of the parties in the context of specific legal system.In domestic law and international law,the principle of abuse pf process has a rich form of expression and applications.Various judicial practices not only enrich the connotation of this principle,but also provide a large amount of evidence for establishing its status as a general legal principle.Theory of inherent power,the theory of good faith and the theory of abuse of right can provide a theoretical basis for the application of the principle of abuse of process to a certain extent.However,the three theories,more or less,have their limits,which means one of those theories is unable to provide strong support for the principle of abuse of process in theory.From the perspective of maximizing the practical effects of this principle,it is preferable to combine three theories with practice needs.Specific to the applicable methods adopted in arbitration practice,the application of the principle of abuse of process has gone through a process of role transition from auxiliary tools to independent roles.Arbitral tribunals gradually abandoned the method of attaching the principle of abuse of process to the jurisdictional requirements,and chose to recognize its status as a general legal principle,and applied this principle independently by including the foreseeability criteria and intention requirements.By applicating the principle of abuse of process in the arbitral cases,the arbitral tribunals have accumulated a great deal of practice experience,there are still some problems needed to be improved and clarified.On one hand,the principle of abuse of process shall be applied as a self-governed principle.On the other hand,its application effect also needs to be clearly distinguished.Under the consideration of separating the principle of abuse of process form jurisdictional requirements,the application effect of this principle is more suitable to be combined with the admissibility issue.In addition,the criteria of the principle of abuse pf process,which is foreseeability criteria and intention requirements also need to be further united.As for the specific stage and related sanctions,it shall be left to the discretion of the arbitral tribunals.