Study On The Issue Of Arbitration Without Privity In ICSID

Arbitration without privity,as an authoritative scholar in the foreign arbitration community,used to describe the new form of arbitration agreement in ICSID international investment arbitration,has been recognized by more and more scholars,but it has not yet formed Unified expression.Under this model,the expression of consensus in arbitration is very different from traditional commercial arbitration.Investors can rely on the �consent� of ICSID from different legal sources made by the host government where the investment dispute is located without negotiation.1.Unilaterally initiate arbitration to achieve the "written consent" required by Article 25 of the Washington Convention.This system design makes it easy for the host country in dispute to fall into a disadvantageous position,and the lack of treaty interpretation methodology demonstrated by the ICSID arbitral tribunal in the process of interpreting "consent" has also caused persistent disputes about the expansion of ICSID arbitration jurisdiction.The intention is to comment on ICSID arbitration and the problems it presents through three aspects: theory,problem and solution.This article consists of two parts: an introduction and a body.The body is divided into four chapters.The first chapter mainly introduces the theoretical origin of ICSID arbitration without privity agreement.arbitration without privity actually require arbitration agreement,it always comes along with the "offer-acceptance" model,which reflects the mixed system design of ICSID private law and public law.The expressions of "non-contractual arbitration" and "compulsory arbitration" cannot fit the internal logic of "offer-acceptance".ICSID made reservations for non-tacit agreement arbitration as early as its founding,and until the large-scale development of investment treaties,the existing "non-tacit agreement" arbitration cases began to gradually emerge.Chapter 2 introduces the different legal sources of ICSID arbitration expressed by a country in the ICSID system and the consequences of different wordings of "consent",combined with the ruling of the classic case of ICSID history,it reflects "no tacit agreement" among various legal sources.Summarize the characteristics of "agree".The main content is that the consensual clause of �full consent� gives ICSID unscrupulous arbitration room for growth,while the expression of �limited consent� narrows this scope,and the expression of �case-by-case consent� cannot produce unconsensual arbitration.The above analysis of "consent" paved the way for the subsequent cut into the ICSID arbitral tribunal to expand the application of "consent".The third chapter is based on the historical ICSID ruling and analyzes the problems of its non-tacit arbitration.It discusses how a country restricts ICSID arbitration without privity in BIT and how ICSID breaks through the application of "consent" in practice.This restriction is usually manifested in practice by the arbitral tribunal expanding the scope of interpretation of "consent" and circumventing the crossroads clause through the umbrella clause so that investors can repeatedly obtain relief benefits.The value orientation of ICSID's protection of investment,the industrialization of investment arbitration,and the lack of treaty interpretation methodology are the main reasons for ICSID's expansion of jurisdiction.The analysis of the above reasons has laid the foundation for the subsequent response to China's response.Chapter 4 mainly introduces the current trend of "full consent" in China's BIT,and analyzes the opportunities and challenges of China's involvement in ICSID arbitration.The opportunity lies in the fact that our country may be the beneficiary of unconscionable arbitration in the process of identity change,and the challenge is that the consensus clause of "full agreement" and the expanded interpretation of "consent" by ICSID will make China very passive as the host country.For the resolution of this problem,the problems of ICSID arbitration without privity should be treated rationally.China should distinguish between different countries signing different BITs and perfect the right to interpret the treaty as a party to the dispute so that China will be undefeated in the face of ICSID arbitration without privity.This article aims to analyze and propose countermeasures by analyzing the theoretical basis of ICSID's arbitration without privity and the expansion of jurisdiction in arbitration practice,to provide China with future participation in international investment arbitration as a capital exporting country or a capital importing country.