Preliminary Objection Under ICSID Arbitration Rules

In 2006,the ICSID Arbitration Rules creatively added Article 41(5),called "manifest lack of legal merits".In theory,the "Preliminary Objection" is designed to increase the efficiency of the arbitration process while balancing the due process.The requirements of "Preliminary Objection" under Article 41(5)include the scope of application,the scope of the review,and the criteria for review.In practice,due to the ambiguity of its provisions and the fact that these requirements are not fixed,the tribunal needs to interpret the terms during the applying process.Although the conclusions are almost identical,the absence of precedent system leads to uncertainty of the results.In order to improve the predictability of the awards,the author thinks that this rule needs to be improved.Comparing with the relevant rules and practical standards in the investment agreement represented by the US' BIT,CETA and TTIP,it is actionable to fix the objection requirements,clarify the scope of the review and moderately release the requirement of application deadline.Therefore,the ICSID Rules should also be improved at these three aspects.The development of the ICSID objection procedure has had important effect on the future innovation of China's investment arbitration.In practice,the first victory of the"Ansung" case brings us confidence and guidance in applying this procedure.Based on the current changes in international investment status of China,we should rationally treat the objection procedure.CIETAC laid down the first investment arbitration rule in 2017.The rule of the procedure is somewhat progressive compared to the ICSID rule.The recent ICISD objection procedure has shown a trend of expansion in application.The CIETAC objection procedure also need to be further improved.Therefore,China should flexibly apply and improve this procedure.