A Study On The Commercialization Of International Investment Arbitration

In recent decades,cross-border economic activities have become increasingly frequent,and investment disputes involving host countries have also been on the rise.Therefore,many arbitration rules mainly drawn up for commercial affairs have been revised to intervene in the settlement of investment disputes as to expand the concept "commercialization",which has changed the pattern of investment arbitration dominated by the International Center for Settlement of Investment Disputes(ICSID).Nowadays,the commercialization of international investment arbitration has become an immense trend in the field of international arbitration.However,although the commercialization approach has shown more advantages in the improvement of investment disputes settlement,there are still many debates in the theoretical circles as whether international investment arbitration should be commercialized or decommercialized.In fact,due to the flexibility of commercial arbitration and its better adaptability to market demands,the commercialization method is reasonable to a certain extent,and there are countless examples of commercial rules applying to investment arbitration.Per se,commercialization improves the competitiveness of arbitration rules,reduces disputes between countries,and most importantly,fills some gaps in the ICSID arbitration mechanism and promotes the development of the existing investment arbitration mechanism.Thus,the present dissertation focuses on a theoretical and practical analysis of the desirability and value of the commercialization of the international investment arbitration and seeks to evaluate the reliability of commercial arbitral institutions to conduct investment-related disputes.Furthermore,this study intends to make an in-depth and systematic exploration of pertinent current issues affecting the legitimacy of international investment arbitration.Therefore,with limited available literature on this topic,it seems evident that the present study constitutes a solid contribution to the understanding of the phenomenon of commercialization of international investment arbitration.In addition to the introduction and the conclusion,this thesis consists of six chapters as follows:The first chapter deals with the current issues in international investment arbitration.It addresses the historical background of commercialization of investment disputes and highlight the different issues arising from the current ICSID mechanism,expounds the current trend of commercial arbitral tribunal conducting investment disputes.In this chapter,the author states that commercializing investment arbitration is desirable as it constitutes a big tool towards the development of investment arbitration.The commercialization increases competiveness between arbitration rules and helps to cover the different current issues and vacuum in the ICSID mechanism.The second chapter addresses the scope of arbitration jurisdiction in commercial settlement of investment disputes.This chapter analyzes the broadness character of the subject matter covered by parties consent under the commercial settlement of investment disputes.Furthermore,it explains the impact of the kompetenz-kompetenz principle,the separability principle,and the involvement of national courts.In this chapter,the author has pointed out that the relation between the "commercialization",the kompetenzkompetenz and the separability doctrine remains intact,as the two doctrines constitute a significant tool towards the consolidation of parties and arbitrations autonomy.And so,national courts involvement may limit the abuse of power by arbitrators.The third chapter addresses post-remedies under commercial-investment hybrid rules.This chapter analyzes the different remedies provided in these relevant rules.At this stage of arbitration,the disputing parties may solicit from the arbitral tribunal or national courts the correction,interpretation,and/or the annulment of acts and decisions considered contrary to what is understood as justice.In this chapter,the author has pointed out that predictability should be enhanced at the post-awards remedies level in order to ensure legitimacy.Accordingly,the author suggested that the "commercialization" disputes resolution mechanism should take efficient actions,such as drawing up procedural safeguards which determine the length of post-remedies proceedings and the composition of the tribunal.The forth chapter focuses on the "commercialization" approach and the recognition and enforcement of arbitral awards.This chapter highlights the obstacles to the enforcement of arbitration awards and analyzes the pro-enforcement mechanisms.Despite the fact that many arbitration laws establish guidelines towards enforcing foreign arbitral awards,the NYC convention remains substantial in facilitating the enforcement of non-ICSID awards.The convention recognizes the discretionary power of national courts in granting or refusing enforcement.The fifth chapter mainly discuss the role of commercial institutions in managing investment disputes and the legality crisis under commercialization,focusing on evaluating the scope of party autonomy,the independence and impartiality of arbitrators,and exploring the possibility of disclosure and challenge by arbitrators.At the same time,It also analyses the role of commercial institutions in enhancing transparency in arbitration,transparency in the costs of arbitration and promoting consistency of awards.The author finds that "commercialization" reserves more power to the parties and national courts to avoid unfairness and irrationality of arbitrators.Although further reforms are still needed,the existing arbitration system has generally been effective in enhancing the impartiality and independence of arbitration and the predictability of arbitration fees.The sixth chapter explores the institutional improvements in the commercialization of investment arbitration.It focuses on the adaptability of commercial arbitration rules in investment arbitration and the issue of sustainable development.Moreover,the author discusses the potential value conflicts between investment arbitration and commercial arbitration.Based on these discussions,the chapter proposes reforms in investment arbitration,including enhancing transparency,establishing appellate mechanisms,improving arbitration efficiency,and limiting the intervention of domestic courts.