| How to impose restriction on double remedies requested by investors in terms of the same investment dispute remains a key issue in international investment.Therefore,the relevant parties incline to integrate the Fork-in-the-Road provision(FITR)into their international investment treaties,which can keep a jurisdictional balance between the above parties and international investment arbitral tribunal.However,many cases have shown that FITR has frequently been rejected by ICSID(International Centre for Settlement of Investment Dispute)arbitrators.Hence,although accepted as a part of Investor-State Dispute Settlement(ISDS)in many investment treaties,FITR cannot function perfectly well as a legal mechanism to prevent investors from taking repetitive legal actions in reality.The parallel proceedings arising from that have produced negative impacts on the jurisdiction of host states in transnational investment,and FITR has been in question thereafter.As such,based on cases concerning FITR,this article will illustrate how FITR has been rejected by ICSID arbitrators,and sort out the root causes of the aforementioned situation.Finally,the author will provide his advices on the solutions to the challenges.The article is divided into six chapters:The first chapter is the introduction.In this part,the author introduces the legal research background for this article,and what he’d like to achieve through this article.After that,the author will give a brief summary of the existing academic achievements involving FITR.Then,the research methods adopted in this article will be shown in the end.The second chapter is the overview of FITR.The author gives brief explanation on the definition and characteristics of FITR in this part.Furthermore,given that FITR is affected by the evolution of international investment,this part,based on their mutual relation,lays an introduction on the development of FITR,and how ICSID arbitrations behave toward FITR.The third chapter explains how ICSID arbitrators reject the application of FITR.In view of the approaches adopted by ICSID arbitrators to achieve that goal,this part will be illustrated with relevant cases regarding FITR.These arbitral cases will be divided into three categories,including the dispute parties,the co-relation between contract claim and treaty claim as well as the cause of the case.The above analysis will highlight the major challenges facing FITR in ICSID arbitration.The fourth chapter explores the root cause of the above challenges.It actually can be attributed to defects of ICSID regime.To be specific,ICSID arbitrators has unbridled discretionary power to decide in their favor.Besides,this part will also shed light on the cause on why the conclusions drawn in former cases cannot be legally binding.The fifth chapter will identify some advices on the remedies to the targeted challenges.Many investment treaties and relevant arbitral cases offer us a clue to find out these remedies,so the remedies is ought to be taken account in the negotiation and conclusion of investment treaties.That requires contracting parties to reconsider the competency of ICSID on all sorts of arbitral cases.Apart from that,the host states should add the Waiver Clause to the ISDS of treaties,and define the applicable scope of Most-Favored-Nation Clause in treaties.To overcome the deadlock resulting from the clash between the different claims,the rules of application of laws should be put in place in ISDS of treaties,too.Furthermore,as China launched a reform on the utilization of foreign capital,the author deem that China should take the above advices into consideration,and offer some suggestions on the adoption of these remedies.The sixth chapter is the conclusion.This part aims at giving a summary of the above content of this article.Host states are advised to focus on the investment treaties so as to keep the FITR more legally applicable. |
