| In recent years,non-ICSID treaty arbitration has gradually become a "tie-breaker" with ICSID treaty arbitration in investor-state arbitration based on investment treaties.Due to the similarity of international investment treaties,the interpretation of the relevant international investment treaty by the court at the place of arbitration or the place of recognition and enforcement when reviewing a non-ICSID arbitral award is not only important for the investor and the respondent State in each case,but also serves as a de facto precedent for investor-state arbitration based on investment treaties as a whole.It is therefore of both practical and theoretical importance to examine cases of review of the setting aside of non-ICSID treaty arbitral awards.This article examines all available cases of judicial review of non-ICSID treaty arbitral awards from public resources.The results of the review show that judicial review of non-ICSID investment treaty arbitral awards can,to a certain extent,correct non-ICSID treaty arbitral awards.The proportion of non-ICSID treaty arbitral awards reviewed by domestic courts that received a negative judgment was approximately 20.19%.Second,the temporal distribution of non-ICSID treaty arbitration judicial review cases,as well as the temporal distribution of negative non-ICSID treaty arbitration judicial review judgments,shows that the opportunity and willingness of domestic courts to conduct judicial review of non-ICSID treaty arbitration awards are on the increase.Thirdly,the regional distribution of negative non-ICSID arbitral decisions shows that the courts that have made negative evaluations of non-ICSID investment treaty arbitral awards are widely distributed,with a total of 10 national courts having made negative decisions on non-ICSID arbitral awards,including many countries with a strong reputation for supporting arbitration,such as France,Switzerland and the UK.The parallel judicial review process of non-ICSID treaty arbitral awards has not led to a further increase or widening of the "inconsistency" of non-ICSID treaty arbitrations or of the investment treaty arbitration system as a whole.In this respect,the experience of domestic courts in dealing with parallel proceedings in the field of international commercial arbitration is to be credited,in particular,with the respect given by the courts of the place of recognition and enforcement to the setting aside procedure at the place of arbitration.In addition to this,the control of the procedure by the initiator of the recognition and enforcement proceedings has also played a role.On the other hand,as can be seen from th e parallel cases of judicial review of non-ICSID treaty arbitration that have given rise to conflicts,the domestic courts have demonstrated a competing trend between the lenient and strict schools of review of non-ICSID treaty arbitration awards in favour of the long-term development of non-ICSID treaty arbitration.Judicial review cases of non-ICSID treaty arbitral awards are largely dominated by developed countries such as the US and Europe,with the US,France,Switzerland,Sweden and the UK being the top five countries receiving the most applications for judicial review following non-ICSID awards.Only the courts in India and Singapore have received applications for judicial review of non-ICSID treaty arbitral awards in Asian countries.In terms of the type of review,cases for review of the setting aside of non-ICSID treaty arbitral awards show a different regional distribution than cases for review of recognition of enforcement.European countries,i.e.civil law countries,have received more applications to set aside non-ICSID treaty arbitral awards,such as France,Switzerland,Sweden and the Netherlands.The practice of judicial review of non-ICSID treaty arbitral awards by courts in the United States,France,Switzerland,Sweden and the United Kingdom shows that domestic courts are able to take note of the specificity of investment treaty arbitration when conducting jurisdictional and public policy reviews,while customarily following the same standard of review as for international commercial arbitration when conducting reviews on procedural matters.In terms of the subject matter under review,the issue of the jurisdiction of the arbitral tribunal is the most promising point of focus for the losing party in a non-ICSID treaty arbitration.In reviewing the jurisdiction of non-ICSID treaty arbitral tribunals,the doctrinal distinction between appellate and avoidance review is that the English courts exercise full appellate review,the US courts exercise deferential avoidance review,and the Swedish,Swiss and French courts fall somewhere in between,in descending order of review power:English,Swedish,Swiss,French and US.The United States.When reviewing the jurisdiction of non-ICSID treaty tribunals,there is some consistency in the views or practices of the courts of the same country.For example,the Swiss Federal Supreme Court has tended to interpret the definition of investment broadly;the English courts have tended to expand the jurisdiction of arbitral tribunals on the basis of the principle of effective interpretation and the broad terms used in international investment treaties;and the French courts have held that abuse of an investor’s rights can defeat the jurisdiction of an arbitral tribunal and have set a high standard of proof for abuse of rights.Of course,inconsistencies have been shown between states,and even by courts of the same state,when reviewing the jurisdiction of non-ICSID treaty tribunals.This inconsistency revolves around the following topical issues:first,whether a MFN clause can extend the jurisdiction of an arbitral tribunal,second,whether ISA predecessor proceedings constitute a condition for the host state’s consent to arbitration,and third,whether the doctrine of res judicata can bar the jurisdiction of an arbitral tribunal.When reviewing non-ICSID treaty arbitrations on procedural matters,leading national courts continue to treat investment treaty arbitrations as commercial arbitrations between equal private subjects.This is mainly reflected in the fact that,firstly,when dealing with conflicts between the doctrine of iura novit curia and the procedural rights of the parties,leading national courts still largely follow the customary approach to conflicts in international commercial arbitration,either by emphasising the control of the parties to the arbitration(e.g.France)or by emphasising a pro-arbitration policy(e.g.Switzerland).Secondly,when dealing with the independence and impartiality of arbitrators in non-ICSID investment treaty arbitrations,leading national courts have refused to depart from the relevant standards in international commercial arbitration and have not been sufficiently aware of the similarities between investment treaty arbitrations.Third,when reviewing procedural ultra vires matters,the leading national courts have followed the practice in international commercial arbitration in the reasoning and applicable law of their awards,seriously ignoring the public law nature of investment treaty disputes and the host country’s right to interpret international investment treaties and domestic law.Comparing the definition of public policy by the courts of the five countries,it can be seen that the review of public policy by the courts of the five countries can be divided into two schools of thought:the lenient school of review represented by the courts of the United States,Switzerland and Sweden,and the strict school of review represented by the courts of France and the United Kingdom.For example,the US courts have held that the prohibition of abuse of process is not a public policy in the US,and the Swiss and Swedish courts have held that a breach of EU law is not necessarily a breach of public policy.The latter,on the other hand,although also more restrictive in its definition of public policy,has been very sensitive to possible breaches of public policy and has refused to let go of suspicions.It is worth noting that the series of judgments by the Paris Court of Appeal reviewing and ruling on corruption in non-ICSID treaty investment arbitration on public policy grounds once again demonstrates the effectiveness of judicial review of non-ICSID treaty arbitral awards by domestic courts,and that the mission of domestic judges to uphold public policy and their sensitivity to the issue of criminality can go some way to mitigating the existence of "conflict between private law dispute resolution and public law disputes".In the above case,the Paris Court of Appeal adopted a "red alert approach" to finding corrupt activity,rather than the "clear and unambiguous" standard of proof prevalent among international investment tribunals,which may encourage Paris-based international investment tribunals to The "red alert approach" is also adopted in the determination of corrupt activity.In general,judicial review of non-ICSID treaty arbitral awards by leading national courts has shown a certain tendency towards de-commercialisation.This tendency is highlighted by the full recognition by domestic courts of the characteristics of arbitration agreements in non-ICSID treaty arbitrations,which are recognised as nonrelative or non-tacit arbitration agreements that are specifically formed by an offer to arbitrate a particular dispute made by the host State to a particular investor of the other Contracting Party in the IITs it concludes,and by the particular investor of the other Contracting Party accepting the offer by the acceptance of that offer by initiating arbitration in the host State,and the resulting arbitration agreement.This understanding has led domestic courts,when examining the jurisdiction of non-ICSID treaty arbitration tribunals,to rely on the treaty interpretation approach in the Vienna Convention on the Law of Treaties for the interpretation of the relevant international investment treaty in order to explore the scope of the arbitration agreement.The use of public international law rules of interpretation by courts in the place of arbitration also reflects the trend towards de-commercialisation in the review of the setting aside of non-ICSID treaty arbitral awards.Furthermore,some courts have explicitly considered the intention of the parties when interpreting international investment treaties.In practice,domestic courts have less power to review the setting aside of non-ICSID treaty arbitral awards than the ICSID Provisional Setting Aside Committee has power to review ICSID arbitral tribunal awards.However,domestic courts,mainly French courts,are more sensitive to international public policy than the ICSID Provisional Annulment Committee.The ICSID Provisional Annulment Committee is less predictable in its interpretation and application of the grounds for setting aside,whereas domestic courts are more consistent in their interpretation and application of the grounds for setting aside.Finally,the paper argues that the choice of venue by non-ICSID parties to arbitration should take into account not only the court’s power of review,but also the court’s willingness to review.Host countries and investors should seek to choose a venue that is favourable to them,taking into account their own needs and taking into account past jurisprudence.For the current reform of the ISDS appellate mechanism,the practice of the five courts in reviewing the setting aside of non-ICSID treaty arbitral awards provides insight that the ISDS appellate body should not have too much or too little power of review,that the ISDS appellate body should have the power to modify the award directly and should not limit the right of the parties to raise new legal challenges,and that international public policy could be added as a ground for review in order to Cultivate the sense of mission of the members of the ISDS Appellate Body to uphold international public policy.For China,it should change its position on sovereign immunity and remove its commercial reservation to the New York Convention,and establish a s judicial review system of non-ICSID treaty arbitral awards that is directly administered by the International Commercial Court of the Supreme People’s Court and is final in the first instance,drawing on the Swiss system of review of international arbitral awards,in order to make China a destination for investment treaty arbitration. |
