Research On Tribunal Manifest Exceeded Its Power In ICSID Arbitration Annulment System

One important characteristic of the arbitration is that the arbitration awards are final and it ensures the efficiency in the dispute resolution procedure.However,in consideration of the accuracy of arbitration awards,whether at the international or domestic level,arbitration awards are more or less supervised.The national court can refuse to recognize and enforce awards made by foreigner arbitration institution.At the international level,ICSID has an internal annulment system to supervise and control the ICSID awards.The annulment system,as the self-clearance mechanism for ICSID awards,meets a lot of challenges in practice and among which the biggest challenge would be the inconsistency of annulment decisions.Such challenge mainly reflects in the application of “Tribunal Manifest Exceeded its Power”,which is the most frequently cited reason for annulment.Since the annulment decision of ICSID should be made public,the inconsistency of the annulment decision may cause difficulty in enforcing ICSID awards,such as,the losing host country may be reluctant to enforce the award because of the domestic public pressure.In addition,the inconsistency of the annulment decision will have an effect on the anticipation of the target of international investment law on ICSID awards,leading to a crisis towards the legitimacy of ICSID arbitration and even threatening the development of international investment law.Therefore,the research on “Tribunal Manifest Exceeded its Power” which is a reason for annulment,and the exploration on further reasons behind the inconsistency of ICSID annulment decisions would be essential to rescue the ICSID arbitration from the legitimacy crisis.The first part of this article analyzes the relationship between the ICSID annulment system and “Tribunal Manifest Exceeded its Power”.By summarizing the characteristics and main problems of the ICSID annulment system,it explains that the outstanding problem currently facing the ICSID annulment system is the inconsistency of the annulment decision,and this problem is mainly reflected in the annulment decision by reference to “Tribunal Manifest Exceeded its Power”.Besides,by analyzing the drafting history and composition elements of “Tribunal Manifest Exceeded its Power”,it lays a solid theoretical foundation for the subsequent analysis of the inconsistency of annulment decisions related to “Tribunal Manifest Exceeded its Power”.The second part of this article mainly adopts the method of case analysis.It specifically describes the performance of inconsistency of annulment decisions in “Tribunal Manifest Exceeded its Power”,by analyzing the ICSID annulment decisions in different cases.In addition,this part mainly conducts a type analysis from the perspective of three composition elements of “Tribunal Manifest Exceeded its Power”,highlighting that the inconsistency of annulment decisions mainly reflects on the different interpretations of three composition elements.The third part of this article explores the reasons of the inconsistency of ICSID annulment decisions from a perspective of legal interpretation.It analyzes the cause of the inconsistency of ICSID annulment decisions from three dimensions which are the interpretation of subject,rule and basis.It also adopts the comparative analysis method to compare ICSID annulment system with other legal systems and strengthens the theoretical foundation for the cause exploration in this part.The fourth part of this article mainly provides an improvement way for the inconsistency of ICSID annulment decisions.On basis of the analysis in previous three parts,especially three reasons mentioned in the third part,it proposes three specific ways to improve the inconsistency of ICSID annulment decisions.At the present stage,the outstanding problem currently facing the ICSID annulment system is the inconsistency of the annulment decision,and this problem is mainly reflected in the annulment decision by reference to “Tribunal Manifest Exceeded its Power”.Such problem is caused by the inconsistency during the interpretation,which is: the subject of interpretation lacks authority,unified interpretation rules,and the lack of interpretation basis.By analyzing and comparing with other international dispute settlement mechanisms,there is no special interpretation authority,interpretation rule and de facto precedent system in the ICSID annulment system.Hence,foresaid reasons and facts lead to the chaos of the criterions and rules during the ICSID annulment ad hoc committee,which causes the inconsistency of the annulment decision.The inconsistency of the annulment decision needs to be refined.First,to increase the authority of the interpreter,the mechanism for selecting and removing members of annulment ad hoc committee needs to be improved,such as,cancelling the Chairman's discretionary authority in the removal of the appointment of members of such committee and exercise the complementary role of the Administrative Committee in removing the appointment of the Committees.Second,a uniform rule of interpretation based on the Vienna Convention on the Law of Treaties is needed.Through the correct application of the Vienna Convention on the Law of Treaties,the consistency of ICSID annulment decisions can be improved.Finally,in terms of interpretation basis,it is difficult to establish a special and permanent treaty interpretation body directly in legislation,so ICSID revocation system can use WTO dispute settlement mechanism for reference,and improve the consistency of revocation decisions by establishing "de facto precedent" system.