Compensation For Mental Damage From The Perspective Of ICSID

With the development of international investment,the problems involved in international investment arbitration are increasingly diversified,and the traditional international investment arbitration mechanism is regarded as aiming at solving the material property damage related to investment.However,with the development of investment practice,non-material damages,such as mental damages,have entered the discussion scope of international investment arbitration.The arbitration institutions represented by ICSID actively discussed the claim for compensation for mental damage,which also opened up new ideas for the practice of international investment arbitration.The thesis is about twenty thousand words,falling into four parts,disregarding the preface and epilogue.The first part:Tracing back to the concept and origin of compensation for mental damage,the system of compensation for mental damage originates from the domestic civil law system,and relieves personality rights.From the concept of domestic law,the generalized concept of mental damage is extended,that is,mental damage includes mental pain and spiritual interests,so that the damage to the personality right of legal person is also included in the category of mental damage.Based on the scope of relief for mental damage in domestic law,the subject of mental damage in international law has expanded from natural person to legal person and even state.From cases of international law,rules of general international law and international treaties,we can see the possibility of relief for mental damage.Specific to international investment law,compensation for mental damage can be divided into two categories:compensation for mental damage of investors and compensation for mental damage of host countries.The second part:The rationality analysis of mental damage compensation in international investment law is very important for the development of mental damage compensation in ICSID.From material loss relief to non-material loss,the relief of mental damage compensation is both necessary and feasible.From the necessity point of view,the complexity of the investment background of the host country and the possible unrest in China make the behavior of interfering investment develop implicitly.In addition,the protection of compensation for mental damage is more based on the basic treatment that the host country should provide in international investment:the requirements of adequate protection and security obligations.The host country should protect foreign investors from domestic political turmoil,and can’t commit improper acts against investors.From the feasibility point of view,the claim of compensation for mental damage should have procedural legitimacy.First of all,in line with the requirements of ICSID arbitral tribunal’s jurisdiction,compensation for mental damages is directly derived from investment disputes.Secondly,compensation for mental damage is different from punitive damages.Punitive damages are rejected in many international investment treaties,but the essence of compensation for mental damage is a kind of compensation.Finally,when the investor is a legal person,the subrogation system can be considered in the procedure that the moral damage of his staff is claimed by the legal person.Based on the labor relationship between the legal person and his staff,the legal person subrogation of his staff’s claims can make the interests of investors more fully protected.The third part:Compensation for mental damage in ICSID is not a brand-new proposition,which has been preliminarily explored in arbitration cases.By combing the previous jurisprudence and the thinking of the arbitral tribunal,we can sum up the claim of how to claim compensation for mental damage under the arbitration procedure and the methodology of how the host country should respond to this claim.From the investor’s point of view,claiming compensation for mental damage is not just a claim,but the ideas involved often have a significant impact on whether the claim is supported or not.Investors can consider claiming compensation for mental damage from three aspects:first,starting from improper behavior,emphasizing the serious aggression of the host country’s behavior.Second,starting from the damage consequences,the mental pain or reputation loss suffered by investors themselves can be confirmed by reasonable proof.Thirdly,starting from the appeal itself,the compensation for mental damage as an independent appeal is distinguished from human rights claims and punitive damages,so that the appeal conforms to the jurisdiction of the arbitral tribunal.The host country can also claim compensation for mental damage from three aspects:First,consider whether the investor’s claim falls within the jurisdiction scope stipulated by ICSID from the perspective of jurisdiction.Second,starting from the causal relationship,it is denied that the damage consequences of investors are caused by domestic behaviors,and investors are required to give sufficient evidence to prove the existence of the causal relationship.Third,starting from the damage consequences,the mental damage consequences,as an exceptional case,must reach the severity degree,otherwise,it cannot support the mental damage compensation,and the general administrative actions will not certainly lead to the mental damage compensation.The fourth part:According to China’s reality,compensation for mental damage can be used for reference in China’s international investment arbitration practice.As ICSID is the main arbitration institution for the settlement of investment disputes,it is also the main institution for the settlement of investment disputes in the process of signing foreign investment agreements in China.In addition,with China’s increasingly active in the field of international investment,there is also the possibility of claiming compensation for mental damages in the future.Therefore,it is necessary to learn from the compensation for spiritual damage in international investment practice.From the specific reference possibility,firstly,we can consider including the provision of compensation for mental damage in the process of signing international investment agreements,so as to make the arbitral tribunal have more basis for exercising jurisdiction.Secondly,we should actively advocate compensation for mental damage in international investment arbitration.Both investors and host countries need to consider the possibility of applying compensation for mental damage in order to better safeguard China’s investment environment and investment interests.Finally,when being sued for compensation for mental damage,we should deal with it carefully,actively study the applicant’s ideas,pay attention to the factual basis and legal reasoning,and actively respond to the lawsuit so as to obtain a favorable litigation position.