Research On The Enforcement Immunity System In The Enforcement Of ICSID Arbitral Awards

In recent years,international investment dispute cases submitted to the International Center for Settlement of Investment Disputes(ICSID)has been on the rise.ICSID is becoming influential in the field of international investment disputes.From objective reasons,there is an increase of international investment flows and international investment disputes.At the same time,the function and effectiveness of the ICSID investment dispute settlement mechanism are acknowledged by more and more investors.ICSID aims to provide investors and host countries an independent and self-sufficient method of settling investment disputes.However,the provisions on the enforcement of arbitration in section VI of the “Convention on the Settlement of Investment Disputes Between States and Nationals of Other States”(hereinafter ‘Washington Convention'),leave the issue of enforcement immunity to the individual States parties.Because countries' positions on state immunity are not uniform,the specific domestic regulations on state immunity are also uneven in many conceptual definitions.Even though the ICSID investment dispute settlement mechanism has significant advantages over other international arbitration institutions in the recognition and enforcement of arbitration awards,the avoidance of enforcement exemption issue has caused many obstacles to the implementation of arbitration awards in many countries.Most of the investment agreements signed by China have submitted ICSID arbitration work as one of the ways to resolve future international investment disputes.Since the beginning of the21 st century,China has frequently involved in ICSID arbitration in the capacity of the host country and home country of investors.It benefited from the implementation of the “introducing and going out” reform policy,China has actively participated in the international market since the1980 s,including introducing foreign capital,developing multinational enterprises,and encouraging foreign investment.Now,China is not only a significant recipient for foreign investment but also gradually becoming a large outward investment country.China is going to participate in ICSID arbitration activities more frequently with various identities in the future.Therefore,to coordinate our country's solutions to national exemptions,including the issue of ICSID arbitration award enforcement exemptions,China has to study the existing problems of ICSID actively and formulate China's national exemption law as soon as possible.For leading the formulation of new rules in the field of international investment and protecting China's fundamental interests and the rights and interests of foreign investors,China has to enforce the scope of the jurisdictional immunity immunity of the investment arbitrationagreement,improve domestic legislation and judicial mechanisms corresponding to the ICSID dispute settlement mechanism.This article is divided into four parts.Through looking the ICSID investment arbitration mechanism in the field of international investment dispute settlement,the first part analyzes the implementation of the ICSID arbitration award in the international community and the arbitration the threat of exemption during the implementation stage due to the regrets in the design of the rules.Based on the hidden dangers in the implementation stage of the ICSID arbitration award,the second part explores the connection between the ICSID arbitration award and the state immunity,especially the enforcement immunity,including analysis of the impact of national exemption positions on the enforcement of awards,the treatment of jurisdictional immunity and enforcement immunity under the ICSID mechanism,and the scope of jurisdictional immunity and enforcement immunity of temporary coercive measures before the award.The third part discusses the validity of the state exemption in the arbitration process after the signing of bilateral or multilateral investment agreements or arbitration clauses.By analyzing the practical cases of domestic market and the international investment market,this article argues that "the signing of an investment arbitration agreement by a sovereign state represents its dual waiver of jurisdictional immunity and enforcement immunity within a limited scope" is reasonable and necessary.The fourth part explores the future improvement and offers some implication for China--the state exemption area as a State party to the Washington Convention--in the recognition and enforcement of ICSID arbitration awards.