The Research On The Counterclaim Rules Field By Host State In The ICSID Arbitration

ICSID arbitration,with the purpose of providing mediation and arbitration for investment disputes between countries and nationals of other countries,has played a great role in promoting the development of international foreign direct investment since its establishment.With the steady development of the world economy,international outward direct investment has increased substantially worldwide.The number of international investment agreements has been increasing year by year.The economic development and progress of international investment will inevitably lead to more investment disputes.Therefore,ICSID arbitration plays a balanced role in protecting investors from unfair treatment and settling disputes.The number and types of cases accepted by arbitration have been expanded and improved.Although the overall growth rate of international direct investment has begun to decline in recent years,the number of cases accepted by ICSID has been increasing year by year,which shows that the arbitral tribunal and ICSID mechanism have been further internationally recognized,and investors of all countries have begun to actively exercise their rights and safeguard their interests.However,development is bound to be accompanied by problems,and opportunities often bring new challenges.ICSID arbitration is no exception.At the very beginning of the establishment of arbitration,the general direction of protecting investors was established.This background has led to the biased position of the arbitral tribunal.Reviewing the ICSID arbitral tribunal's arbitration ruling over the past few years,the arbitral tribunal has placed too much emphasis on investors overthe host country,and some of the awards have ignored the interests of the host country,resulting in the loss of public interests and other aspects to the host country and resulting in the imbalance of interests between the host country and investors.Scholars' opinions on how to protect the rights and interests of the host country are common,and discussions on human rights protection,natural resources,public interests and other issues of the host country are endless.Therefore,host countries have expressed dissatisfaction.In the past decade,countries have chosen to withdraw from ICSID mechanism one after another,and international criticism and Suggestions on ICSID arbitration have become increasingly popular.Even so,ICSID arbitration remains the most influential international investment dispute resolution mechanism.In the face of many problems in the international arena,arbitration itself is also actively seeking innovation and improvement,and therefore has carried out several rounds of consultation and discussion on the reform of the arbitration mechanism.However,the most fundamental position of the arbitral tribunal has not been changed.The problem of protecting the interests of the host country and balancing the relationship between the host country and investors remains to be solved.It is in this context that the research and operation of the host country's counterclaim rules comes into being.Some host countries began to explore how to make use of the host country counterclaim rules stipulated in ICSID convention to lodge counterclaims against investors,so as to directly facilitate the maintenance of their own interests.However,it is undeniable that this active exploration of the host country still needs to be further studied and improved.In practice,the proportion of the arbitration tribunal supporting the counterclaim of the host country is very small.Compared with the vigorous development of ICSID arbitration in other aspects,the cognition and practice of the counterclaim rules of the host country need to be improved and improved.In addition to the study on the international level of ICSID host country counterclaim,this paper also tries to put forward some Suggestions on the future development direction of China's counterclaim rules based on the current situation of China's international investment development.This paper is divided into three parts: introduction,text and conclusion.The text is divided into three chapters.Chapter one reviews the development of the host country counterclaim rules in ICSID arbitration.Starting from the recent development of ICSID arbitration,this paper briefly analyzes the current situation and problems of international investmentand settlement of international investment disputes,and thus leads to the reasons for the emergence of counterclaim practice in ICSID arbitration in the host country.On this basis,the development of counterclaim in the host country at the present stage is briefly summarized,which plays a background import role for the following text.The second part is an overview of counterclaim,including concept,provisions of domestic law and provisions of international dispute settlement rules.Firstly,the concept of counterclaim is defined to clarify the connotation of counterclaim.Secondly,there is a relationship of mutual influence and promotion between domestic law and international law,and counterclaim is a concept of international law introduced from domestic law.Therefore,counterclaim provisions in domestic law of various countries are briefly summarized.Finally,from the analysis of the referential counterclaim rules involved in the international dispute settlement rules,the author imports the analysis of the host country counterclaim rules in the ICSID mechanism.This part mainly defines the counter request from the level of text stipulation.In the last part,the value of the counter request rules is reviewed,and the possible benefits and disadvantages of the rules are summarized objectively,so as to promote the comprehensive understanding of the counter request rules and help to promote the advantages and avoid the disadvantages in the future.The first part of the second chapter summarizes the focus of the arbitration tribunal on the counterclaim award of the host country in recent years.It is obviously not enough just to stay in the text analysis,but the best reference and research significance in practice is the award of the arbitral tribunal.In-depth analysis of the reasons for the award of the case is extremely necessary,which can summarize the existing problems and grasp the future direction.The second part analyzes the establishment of counter request rule based on the case.It is precisely because the arbitration rules themselves have a vague definition of the establishment requirements of the counterclaim of the host country,which leads to the lack of unified standards in the arbitration practice and the conflict between the judgment before and after.Therefore,this part summarizes the establishment requirements.Firstly,it divides the two stages of the arbitration tribunal hearing the counterclaim of the host country,which is mainly reflected in the two stages of jurisdiction and admissibility.This is not only the division of legal terms,but also the difference between the jurisdiction of arbitration and the jurisprudence.Specifically,jurisdiction includes two major elements: within the jurisdiction of ICSID arbitration,and the consent of both partiesto the host country's counterclaim.In particular,this paper analyzes the standards of "consent",mainly including "ICSID convention standard" and "investment treaty standard".Admissibility includes relevance and subject requirements.Relevance requires the arbitration tribunal to analyze specific cases and subject requirements are reflected in the suitability of parties.In general,the establishment of the stage of jurisdiction requires more uniform criteria for the establishment of the requirements of judgment,the stage of admissibility requires the specific judgment of different cases.The first part of chapter three analyzes the counterclaim rules and their applicable problems and countermeasures in ICSID arbitration.With the practice and theory research of counterclaim rules,both the counterclaim rules and their practices have some problems.Therefore,this paper analyzes the problems and tries to propose targeted countermeasures.First of all,the arbitral tribunal does not have clear criteria for judging the jurisdiction of counterclaim,which is specifically reflected in the identification criteria of "mutual consent".The individual cases are quite different and there are disputes.Therefore,this paper integrates the two judgment criteria mentioned above and makes a concrete analysis combining the different types of investment treaty provisions.Secondly,the investment treaty has no clear provisions on counterclaim.It is precisely because of the difficulty in judging consent that it is extremely necessary to clarify counterclaim,which will promote the host country to exercise power and improve the efficiency of arbitration.Therefore,the article proposes to reshape the treaty and insert new articles.Third,there are problems in the structure of rights and obligations in the investment treaty.There are too many provisions on the rights of investors and too few on the obligations,which makes it more difficult for the host country to exercise counterclaims and may indirectly lead to investors' indiscriminate litigation.Therefore,it is suggested to add investor obligations to the treaty.The second part of the third chapter is the reflection and suggestion of applying counterclaim rule to China.Firstly,the present situation of counterclaim in China is analyzed,and the present situation of investment treaty and arbitration practice in China is introduced.Secondly,it puts forward some Suggestions on counterclaim rules in China's future international investment agreement.Since the initiation of arbitration practice depends on investors,it is more operable to improve the treaty.This paper suggests clarifying the counterclaim rules in the treaty while payingattention to clarifying the obligations of investors.Starting from two aspects,we should improve our investment treaties in order to cope with possible future situations and better safeguard our legitimate interests.