| The standard of review applied in ICSID arbitration is the level or intensity of review by a ICSID arbitral tribunal of measures taken by host state, which is of great significance in balancing the interests of host states and foreign investors. International investment disputes often involve host state’s public interest and public policy aims, representing as regulatory disputes, called as "public law dispute"; while investment treaty arbitration is a form of public law adjudication, the natures of international investment dispute and investment treaty arbitration make it necessary to introduce public law standards of review in ICSID arbitration.The ICSID tribunals should use appropriate standard of review to resolve regulatory disputes in a public law context, and minimize the legitimacy crisis in investment treaty arbitration.The current problems arise in the standards of review utilized by ICSID arbitral tribunals are as following: firstly, some ICSID arbitral tribunals ignoring the nature of regulatory dispute, shoehorning investor-state arbitration into international commercial arbitration mode and employing inappropriate standards of review; secondly,the standards of review failing in consistency. The five Argentine cases in ICSID which initiated by American investors are typical, including CMS, Enron, Sempra, LG&E and Continental Casualty case.To resolve the above problems, the public law approach provides the ICSID tribunals with greater discretion to balance the treaty obligations assumed by host states and their public interests,and it is feasible to develop a new standard of review based on comparative public law. There are two ways to solve the issue: constructing a unified standard of review or,learning from the standards of reviews that WTO Dispute Settlement Body and ECtHR utilize,namely, the proportionality analysis and the margin of appreciation. China, as a big country of outward investment, needs to be prepared to avoid being in a passive position in similar cases.Except for the introduction and the conclusion,this article is divided into five parts,totally about 45,000 words.Part Ⅰ: & "The overview of standards of review in ICSID arbitration". This part firstly analyses the nature of investment dispute in ICSID arbitration, indicating that both regulatory disputes and ICSID arbitral tribunals should be treated in public law context. Secondly, this part introduces the concept and function of standard of review utilized in ICISD tribunals.Part Ⅱ: "The problems of the standards of review utilized in ICSID arbitration". In this part, the author points out, by the analyses of Sempra and other four ICSID case, that there are two problems in the current standards of review utilized in some ICSID arbitration: firstly,standards of review are inappropriate, namely, some tribunals reviews regulatory disputes by employing private law approach; secondly, the standards of review lack coherency and consistency.Part Ⅲ: "The origins and effect of the problems of the standards of review applied in ICSID arbitration".This part analyzes the origins of the problems in the standards of review in ICSID arbitration, including internal and external sources. And then the author point out that these problems trigger the legitimacy crisis of ICSID, forcing ICSID to reform itself.Part Ⅳ: "Reconstructing the standards of review utilized in ICSID arbitration". This part elaborates two kinds of methods to resolve the problems: constructing a unified standard of review or, learning from the standards of review, namely WTO DSB’s proportionality analysis standard and ECtHR’s margin of appreciation standard; The author set forth his viewpoint on the basis of the analyses of the pros and cons of these two solutions.Part Ⅴ: "The inspirations China might draw from the standards of review applied in ICSID arbitration". In this part,the author believes that China might draw some inspirations from reconstructing a reasonable standard of review and suggests three countermeasures,namely, first, perfecting the general exception clauses; second, restricting the broad interpretation of certain BIT clauses; third, advocating the proportionality analysis standard and the margin of appreciation standard. |
