Research On The Application Of Exhaustion Of Local Remedies Principle In China From The Perspective Of ICSID

With the continuous expansion of ICSID jurisdiction,it is particularly important to exhaust the principle of local remedies as a powerful weapon to safeguard national economic sovereignty.The application of exhaustion of local remedies principle is different from the traditional international law "waiver requires express".In ICSID arbitration,it means "requirement requires express".In addition,in ICSID arbitration practice,in ICSID arbitration practice,it is not uncommon for the arbitral tribunal to evade the application of local relief clauses by expanding the interpretation of relevant terms(e.g.,fork-in-the-road clause,most-favored-nation treatment clause and umbrella clause).Since joining the Washington convention,the Chinese government and investors to participate in the ICSID arbitral practice is not much,this is not only associated with the shortcomings of ICSID arbitration mechanism,also with the national conditions of our country and our country principles applicable to exhaustion of local remendies problems related,such as: local remedies clause in bilateral investment treaties in China is imperfect,and other relevant provisions affect local relief applicable problem.To improve the application of exhaustion of local relief principle in China from the perspective of ICSID,we should first fully consider the historical background of China and reasonably determine the boundary of application of exhaustion of local relief principle in China.The application of the principle of exhaustion of local remedies should be relaxed in countries with relatively poor investment environments;For countries with superior investment environments,local remedies are strictly applied and disputes are settled at the domestic level.At the sametime,we should perfect the local relief clause in our bilateral investment treaty and deal with the connection between the local relief clause and other clauses.Except for the introduction and conclusion,the author mainly divides into four parts to illustrate the perspective of ICSID principles applicable to exhaustion of local remendies research in China related issues,trying to analyze our country in the current capital output and input of economic situation,how to protect our country's economic sovereignty and protect foreign investors achieve maximum balance between the interests of the problem.This paper is mainly divided into the following four parts:The first part is an overview of the principle of exhaustion of local remedies.In this part,the author comprehensively analyzes the exhaustion of local relief principle in traditional international law and the exhaustion of local relief principle in ICSID perspective.Through comparative analysis of exhaustion of local relief principle in different backgrounds,it is concluded that ICSID arbitration mechanism is different from that in traditional international law,and the impact of ICSID arbitration on exhaustion of local relief principle in traditional international law is self-evident.In ICSID arbitration,the application of the principle of exhaustion of local remedies requires prior declaration,which undoubtedly increases certain restrictions compared with the application of the principle of exhaustion of local remedies without declaration in traditional international law.The second part is challenges of exhaustion of local remedies in the ICSID arbitration.As we all know,more and more investor-country disputes have been submitted to ICSID arbitration,and ICSID has been expanding its jurisdiction.On the one hand,ICSID arbitral tribunal "deliberately" expands its jurisdiction;On the other hand,the weaker countries attract foreign investment by "voluntarily" giving up domestic jurisdiction and fully agreeing to submit the investor-state dispute to ICSID arbitration.Driven by these two trends,the jurisdiction of ICSID arbitral tribunal keeps expanding.As a powerful weapon in traditional international law to control the investor-state dispute under the domestic jurisdiction of the host country,the exhaustion of local relief principle plays a self-evident role in limiting the extensionof the jurisdiction of ICSID arbitral tribunal.Therefore,exhaustion of local relief principle has encountered many challenges in ICSID arbitration practice.Among them,the most common means to limit and nullify the application of exhaustion of local relief principle is through expanding the interpretation of relevant provisions in bilateral investment treaties.In this part,the author mainly analyzes the specific ways in which ICSID arbitral tribunal applies the fork road clause,most-favored-nation treatment clause and umbrella clause in bilateral investment treaties to limit the application of local relief clauses,so as to provide theoretical and practical basis for the following countermeasures of China.The third part is the practical analysis of the application of exhaustion of local relief principle in China from the perspective of ICSID.In this part,the author,from the perspective of China,discusses the specific practice of China's participation in ICSID arbitration,and on this basis,analyzes the provisions of China's bilateral investment treaty on exhaustion of local relief principle and the analysis of China's application of exhaustion of local relief principle.In addition,it analyzes the problems in applying the principle of exhaustion of local remedies in China from the perspective of ICSID,including the imperfect provisions of local remedies and the influence of relevant provisions in the bilateral investment treaty.The last part mainly expounds the perfection of the principle of local relief in the perspective of ICSID.Before putting forward the Suggestions,the author first analyzes the factors that should be considered in perfecting the local relief principle of exhaustion.Face the calvo recovery of socialism,our country "in advance to the construction of the era background,reason analysis of our country in the current economic status quo of capital output and input,the boundary of the principles applicable to exhaustion of local remendies,and further puts forward concrete Suggestions,including Suggestions for the perfection of the provisions of the local relief,and how to deal with local relief terms and related terms of the issues in the bilateral investment treaties.