The Identification Of Investor Status Of State-Owned Enterprises In ICSID Arbitration

The main force in the transnational investment market is state-owned enterprises of China.State-owned enterprises'overseas investment has contributed to the economic growth of the host country and increased employment.But with the increasing scale of investment,the number of investment disputes is also increasing.Because SOEs have both commercial and public attributes,they are closely related to their home countries and may make strategic investments and business activities at the will of their home countries,so the investment behavior of SOEs investors is often subject to strict scrutiny of host countries.With the increase of investment activities and the increase of investment disputes,the settlement of investment disputes is particularly important.The ICSID Centre is the body that resolves disputes involving private investors and state investments.Private investors may resort to the ICSID for redress by initiating arbitration.If state-owned enterprises want to seek relief via the ICSID center,they need to constitute private investors in the first place.State-owned enterprises are required to be private investors in an investment treaty and are considered as nationals of "the other contracting state" under the ICSID Convention.In the arbitration practice at the ICSID Center,the Broches standard is adopted and judgment is made accordingly,which has been applied by arbitration tribunals for many times in practice over the years.China's state-owned enterprises are frequently challenged by the host country when they apply to the ICSID Center for arbitration.Their private status is measured by the current Broches standard,in combination with the new rules of the international economic order.What are the factors that affect the status of private investors in state-owned enterprises?Facing our country state-owned enterprise private investor status cognizance's difficult position,which aspect may carry on the response?This article contains four parts.Firstly,it discusses the triple logic of investors'status in state-owned enterprises.State-owned enterprises are required to comply with the investor provisions of the investment agreements and must also constitute"nationals of another contracting party" under the ICSID Convention.However,most investment agreements concluded by countries around the world do not specify whether state-owned enterprises are investors or not.At the same time,the ICSID Convention has not defined the status of state-owned enterprises,so there is no answer whether the state-owned enterprises are qualified investors at the level of regulation.The second part elaborated the ICSID arbitration tribunal to the state-owned enterprise investor status cognizance practice.In practice,the ICSID Center adopts the Broches standard to judge the status of private investors.The standard makes it clear that only when state-owned enterprises perform government functions and act as government agents,they are not recognized as private investors.The arbitration tribunal of ICSID has practiced this standard in many cases,and finally formed the judgment standard based on the nature of the enterprise investment behavior.The third part elaborated the influence our country state-owned enterprise investor status cognizance factor.Based on OECD and the new rules on state-owned enterprises in TPP,this part analyzes the reasons that affect the determination of the status of private investors in state-owned enterprises.The fourth part analyzes how to deal with the dilemma of SOE investor status from three aspects:the relationship between SOE and government,SOE management and overseas investment risk control.