On ICSID Investor's Frivolous Pleading Prevention Michanism

The regulation of "frivolous pleading" originated in the field of domestic law,with the purpose of preventing investors from making claims without legal basis,and later expanded to the field of international investment law.In recent years,The status of developed countries and developing countries as capital-importing countries and capital-exporting countries are confused.The status of traditional investment treaties which only consider the interests of investors without considering the interests of the host country has been inconsistent with the actual development needs.How to realize the balance of interests between the investor and the host country is an inevitable choice to establish a fair and reasonable new international investment order.In the investor-state dispute settlement mechanism(hereinafter referred to as "ISDS" mechanism),the natural tendency of the arbitral tribunal is to settle the dispute between the investor and the host country.In addition,the uneven distribution of litigation rights has led to the growing phenomenon of "indiscriminate litigation" by investors.The "frivolous pleading" of investors is an important factor to break the balance of interests between investors and investors,and its negative impact can not be underestimated.Therefore,we need to guard against it.To determine the prevention of "frivolous pleading" of investors in the agreement basis of ICSID jurisdiction is the basis of the construction of prevention mechanism,aiming at giving host countries a broader right of defense in international investment treaties.In terms of system construction,we should improve the treaty interpretation mechanism.Explore the ideal form of interpretation of investment treaties with the existing system of fit,will explain the classification of matters to ensure that the contracting parties and the arbitral tribunal can interact,influence each other,so that the interpretation mechanism in a dynamic balance.In rule-making,Giving the host country the right to raise counterclaims and analyzing the problems existing in the existing rules of counterclaims will provide a favorable tool for the host country to deal with the "frivolous pleading" of investors.At the same time,the contracting parties need to make further detailed provisions on the refusal of interest clause in the treaty.Preventing third-country investors from obtaining treaty protection free of charge,such as by registering "shell companies",is potentially protective for States parties and their domestic investors.It can be said that,The level of investment treaties signed by a country is directly reflected in the number of refusal of interest clauses.Exploring and refining the substantive and procedural requirements of the application of this clause can establish a unified standard for the application of this clause by the arbitral tribunal.The practice of ICSID arbitration shows that the existing system is difficult to guarantee the fairness of the award,so it is necessary to establish a mature appeal mechanism under the framework of Washington Convention to make up for the shortcomings of the current revocation mechanism.Under the environment that international investment treaties generally improve the protection standards for foreign investors,it is also the final barrier for sovereign States to prevent foreign investors from abusing their litigation rights.The current ICSID arbitration rules do not specifically prevent investor abuse clauses,but play a role in the process of its role in the abuse of investors play a certain role,this inhibition is extremely limited.To reinforce this inhibition,ICSID arbitration rules set a certain "threshold" for the central jurisdiction,but the "threshold" standard is too broad,resulting in poor practicability.On the one hand,we need to refine the jurisdiction standards and improve the applicability of arbitration rules.On the other hand,we should learn from the advantages of other dispute settlement mechanisms and actively introduce new rules,whether to prove the existence of the funding relationship or to quote the "clean hands" principle to enrich the host country's defense theory.Or under the framework of ICSID,the purpose of applying accelerated processing procedure and quickly rejecting claims without legal substance is to broaden the relief channels of the host country and guide and help the host country to make positive and effective defenses against investors' "frivolous pleading ".China has the dual identity of a large capital-importing country and a large capital-exporting country,and needs to undertake the dual tasks of attracting overseas investment and protecting its own interests.Taking into account the current situation of our country's development,when signing new treaties and amending old treaties,we should take the following measures:We should pay full attention to the "frivolous pleading" of investors and guard against the phenomenon of losing the right to formulate investment rules in order to attract foreign investment.In the application of the investment dispute settlement mechanism,we should not only use the existing arbitration rules to safeguard our own interests,but also protect our own interests.It should also enrich its own applicable defense theoretical basis in investment arbitration.Whether it is prevention in advance,confrontation in the matter or remedy after the event,the purpose is to balance the interests of all parties in international investment.Maintain the fairness of the ruling.