Legal Analysis On ICSID Mechanism Applicable To Hongkang And Macao Special Administrative Regions

This paper mainly discusses the legal ground,legal path and legal consequences of the application of ICSID mechanism in Hongkong and Macao SAR.Under the jurisdiction of the Washington Convention,the ICSID dispute settlement mechanism primarily resolves legal disputes arising from direct investment between foreign investors and host States,and its parties must be sovereign states,constituent subdivision or agency of a Contracting State designated to the Centre by that State.In this context,Tza Yap Shum v.Republic of Peru and Sanum Investments Limited v.Lao People's Democratic Republic,which have previously been involved in the Hongkong and Macao SAR,which show Bilateral Investment Agreements between China and foreign countries do not apply to the Hongkong and Macao SAR.This paper focuses on how the Hongkong and Macao SAR can apply the ICSID mechanism separately through Hong Kong/Macau and Foreign BIT.Guided by the great principle of "one country,two systems",the Hongkong and Macao SAR have the right to enter into separate Bilateral Investment Agreements in accordance with the relevant provisions of the Basic Law of Hongkong/Macao.Although the Hongkong and Macao SAR has the right to sign the Hongkong/Macau-Foreign BIT separately,the lack of the ICSID dispute settlement mechanism in the Hongkong/Macau BIT is due to the failure of the Government of the People's Republic of China to designate the Hongkong and Macao SAR as a "constituent subdivision or agency" of the Hongkong and Macao SAR as a party in accordance with Article 25(1)of the Washington Convention.The article analyzes the application of ICSID mechanism under Hongkong and Macao SAR under Hongkong/Macau BIT from the external contracting rights of the Hongkong and Macao SAR,the jurisdiction clause of the ICSID Convention and the territorial application clause.And by drawing on the practice of other Contracting States' special territories,the legal path of applying ICSID mechanism to the Hongkong and Macao SAR is sorted out in detail,the Central government designates the Hongkong and Macao SAR to the ICSID Center,the Government of the People's Republic of China authorizes the Hongkong and Macao SAR to select the ICSID mechanism as the method of dispute settlement,the Hongkong and Macao SAR approves the three steps of the Hongkong and Macao SAR to submit the investment dispute to the ICSID Center in the face of specific investment disputes.After combing the legal basis and legal path of applying the ICSID mechanism separately to the Hongkong and Macao SAR,combining the consideration of political and economic factors,realistic needs,the article analyzes the possible legal risks and rights and obligations of the Hongkong and Macao SAR to apply the ICSID mechanism separately,including the right of the Hongkong and Macao SAR Government to respond to the case and the distribution of the ruling obligations of the Hongkong and Macao SAR Government and the People's Republic of China.The article solves the legal problem that the independent application of ICSID in The Hongkong and Macao SAR has a feasible legal basis and legal path,as to whether the Central Government will eventually designate the Hongkong and Macao SAR to apply the ICSID mechanism,it will need the People's Republic of China and the Hongkong and Macao SAR Government to make a final decision based on the consideration of political and economic factors.