A Study On "Precedent Citation" In ICSID Arbitration

The International Center for the settlement of Investment disputes（ICSID）was established in 1966 based on the Washington Convention and accepted and settled international investment disputes for the first time in 1972.After entering the 21 century,the number of accepted cases increased significantly.So far,there have been a large number of adjudication cases.ICSID has become the main means to resolve international investment disputes because of its advantages such as high speed,high efficiency,wide application and great influence.When the ICSID arbitration tribunal adjudicates a dispute,the applicable law as the basis for resolving the dispute is the "investment agreement" signed by both parties to the dispute.Due to the language barrier between countries,differences in the judicial environment,and the content of investment agreements related to the core interests of the host country,international investment treaties are often vague and general.This leads to serious difficulties in the award of the arbitral tribunal,and the arbitral tribunal adopts the method of "precedent invocation" in order to better resolve the dispute.However,the conduct of "precedent invocation" by the arbitral tribunal is not standardized and there are a lot of disputes.The dispute mainly comes from the following aspects: first,in terms of the legality of "precedent invocation",international law and the Washington Convention do not confer law-making power on ICSID,nor does it clearly indicate what role precedent can play in the ICSID arbitration tribunal.Second,there are drawbacks in the process of citation.Due to the lack of effective error correction mechanism in ICSID arbitration,arbitrators will face a large number of cases which are the same or similar to the disputes involved in the process of "precedent invocation".When faced with a completely different "precedent" in the outcome of the award,the arbitration tribunal needs to make a choice.The arbitral tribunal usually tends to choose a precedent that is favorable to its judgment,which often leads to the dissatisfaction of the subject of one party.If the previous erroneous award made by the arbitrator is "invoked" by the subsequent arbitral tribunal,it will make it difficult to correct the continuation of the error.These problems have seriously hindered the healthy and sustainable development of the ICSID arbitration tribunal.The role of precedent in ICSID arbitration can not be replaced,and the phenomenon of "precedent invocation" in ICSID needs to be regulated urgently.The path of standardization can be carried out from the following two aspects: the first is the ICSID system level.From a macro point of view,to regulate the "precedent invocation" of ICSID is to give the legal basis of "precedent invocation" in the field of international law.The second is to standardize the cases of ICSID,through the establishment of appellate bodies,the adoption of guiding cases and other models to improve the accuracy of arbitral awards.The second is the ICSID adjudication level.From a micro point of view,specific to each case,it mainly includes the conditions for determining that the arbitral award can be used as a precedent,as well as the optimization of the content of bilateral investment treaties and restricting the reasoning of the arbitral tribunal to reduce the occurrence of misjudged cases.prevent the occurrence of wrong cases.Finally,it makes the ICSID system more sound,and the arbitration tribunal’s behavior of "precedent invocation" can be more standardized.