Study On ICSID Jurisdictional Objections From The Perspective Of Rebalancing

The core of the ICSID mechanism is the jurisdictional system,and the determination of whether an arbitral tribunal has the qualifications to resolve disputes depends on the establishment of jurisdiction.Accordingly,raising objections to jurisdiction is an important right of the parties.Objections to jurisdiction under the ICSID mechanism are a crucial step in preventing the establishment of arbitral jurisdiction,and due to the particularity of the ISDS mechanism,contracting states that are in a passive position often become the main body to raise objections to jurisdiction.In practice,objections to jurisdiction often involve issues such as human rights,the environment,and investors’ illegal behavior,which are related to the public interests and sovereign interests of contracting states.In contrast,the ICSID mechanism has a trend towards expanding jurisdiction,with some arbitral tribunals tending to maximize investors’ rights to bring claims in order to ensure investment protection.Therefore,objections to jurisdiction reflect a conflict between public and private interests,and a re-balancing perspective on objections to jurisdiction research can help promote the fair and enduring function of investment arbitration mechanisms for dispute resolution.Article 25(1)of the ICSID Convention sets out the substantive,jurisdictional,and subjective requirements for ICSID jurisdiction.However,due to legislative ambiguity and the principle of self-jurisdiction,the specific definitions of "investor" and "investment" for these requirements in relevant BITs applied in specific cases vary slightly and often require final confirmation by the arbitral tribunal.Therefore,the establishment of jurisdiction by the arbitral tribunal requires a confirmation of the investment subject,investment behavior,investment time limit,and consent to jurisdiction under both the ICSID Convention and the relevant BIT applied in the case.Only on this basis can the arbitral tribunal further make a decision on the merits of the case.It is a crucial right for the parties involved in the arbitration to raise jurisdictional objections against the above requirements during the proceedings.This article will explore the issues surrounding objections to jurisdiction in the context of the ICSID from a rebalancing perspective,covering four aspects.In the first part,the concept of rebalancing will be introduced by discussing the notion of "global economic imbalances." While the problem of economic imbalances has long existed,the expression of these imbalances has shifted from "North-South conflicts" to "public-private conflicts" as the times have changed.In the international investment field,rebalancing mainly refers to the balance of interests between host countries and investors.The second part discusses the basic issues surrounding objections to jurisdiction in the ICSID,starting with the theory of self-jurisdiction,and examining the arbitral tribunal’s power of recognition and the scope of recognition concerning jurisdictional objections.This discussion will focus on four aspects: jurisdiction over the subject matter,jurisdiction over the person,jurisdiction over time,and jurisdictional consent.Through a rebalancing perspective,the article will examine the problems that arise from objections to jurisdiction in the ICSID,including lack of judicial authority,legislative ambiguity,and expansion of arbitral jurisdiction.The third part responds to the jurisdictional objections raised by ICSID arbitral tribunals in practice in the context of rebalancing.It analyzes the existence of jurisdictional objections in preliminary objection procedures,the important role of preliminary objections in rebalancing,the disputes in the jurisdictional objection requirements,and the specific disputes raised in practice,including the arbitral tribunal’s jurisdiction over investment corruption disputes and jurisdiction over claims for mental distress compensation.It also addresses the issue of jurisdictional objections to counterclaims,which is a relatively cutting-edge topic in both domestic and foreign research.The fourth part explores the improvement of jurisdictional objections in ICSID under the perspective of rebalancing.The improvement of jurisdictional objections in ICSID relies on the existence of the Washington Convention and is subject to the arbitral tribunal’s discretion.However,in international law research,it is difficult to modify the convention text or influence the arbitrator’s stance,which remains a hindrance to the innovation of the ICSID jurisdictional objection mechanism.At the same time,it analyzes China’s practice and countermeasures in participating in jurisdictional objections under the rebalancing context,clarifying China’s role in international investment and proposing reasonable ideas to address public-private conflicts,improve state participation in arbitration,and better balance the interests of investors and host countries in the context of global economic restructuring.