Research On State-owned Enterprises As Claimants Under ICSID

ICSID is a dispute settlement institution established for the settlement of international investment disputes between investors and host countries.Like other international dispute settlement mechanisms,the first step of arbitration procedure is to determine the jurisdiction of cases.The eligibility of the applicant is the premise of the jurisdiction of the international investment arbitration tribunal,and the qualification of the applicant will be bound by the requirements of the investment treaty.Article 25 of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States clearly defines the personal jurisdiction of ICSID,which states that the legitimate applicant must be a "national of the Contracting State",including the natural person and the legal person.However,because of the treaty limitations of the Convention,ICSID arbitration applicants must also be private.In the world,state-owned enterprises are the main market entities that can be seen everywhere,and each country has different definitions of state-owned enterprises.The state-owned enterprises are born with political and economic nature,and they are the market subjects formed by the mixture of "public" and "private".In this mixed nature,the investment behavior of state-owned enterprises must also include government behavior and business behavior.With the rapid development of the mixed economic system and the continuous combination of private capital and state-owned capital,the boundary between "public" and "private" of state-owned enterprises is becoming weaker,which makes it more difficult to distinguish the sovereign behavior and commercial behavior of state-owned enterprises.Therefore,whether the state-owned enterprises can be qualified applicants for ICSID arbitration has been controversial in practice.The first chapter is the analysis of ICSID arbitration jurisdiction elements,which paves the way for the following analysis of the qualification of state-owned enterprises in ICSID arbitration applications.Based on the analysis of Article 25 of the Washington Convention,this paper attempts to clarify the preconditions for ICSID jurisdiction from three perspectives: legal disputes arising from investment,the requirements of the main body of disputes and the agreement of jurisdiction.The second chapter is the dispute analysis of the qualification determination of the state-owned enterprise arbitration applicant.First of all,it expounds what is state-owned enterprise,the difference between state-owned enterprise and ordinary investors,and the development of the nature of state-owned enterprise in recent years.Then it classifies and sorts out the specific disputes of the application qualification of state-owned enterprises in ICSID arbitration.One is that there are different regulations on the qualification of applicants for state-owned enterprises in international investment treaties.The qualification of applicants for state-owned enterprises in investment treaties depends on the definition of "investors" in treaties.The other is that the behavior of state-owned enterprises has the nature of government,which can be attributed to the state.At this time,private investors cannot be qualified applicants for ICSID arbitration.The third chapter is the application and improvement of Broches standard in ICSID arbitration.In the practice of arbitration,Broches standard is formed to determine whether the state-owned enterprises are qualified to initiate ICSID arbitration by examining the two rules of "performing government functions" and "acting as government agent".However,there are many deficiencies in this rule,which need to be improved.The fourth chapter puts forward some suggestions on how to solve the qualification problem of ICSID arbitration.With the development of Chinese state-owned enterprises' overseas investment,Chinese state-owned enterprises should actively use ICSID arbitration to protect their own rights and interests,adhere to the Broches standard to determine the qualification of arbitration application for state-owned enterprises,improve the definition of state-owned enterprise investors,and continue to deepen the reform of Chinese state-owned enterprises.