| Driven by the “Going Global” and the “One Belt,One Road” development strategy,Chinese companies’ overseas investment has been increasing.State-owned enterprises,acting as the main force of China’s overseas investment,have repeatedly made new highs in the scale and frequency of investment.However,because state-owned enterprises have both commercial and national features,their investment are more subject to be strictly censored by the host countries than other enterprises,resulting in the obstruction of the normal economic activities of the state-owned enterprises and investment disputes.With the growth of overseas investment by state-owned enterprises,the settlement of investment dispute is particularly important.ICSID is an institution that resolves investment disputes between investors and host countries.Whether state-owned enterprises are qualified to bring investment arbitration claim under ICSID depends on whether the state-owned enterprises meet the “a national of another Contracting State” requirement of the ICSID Convention.In the CSOB v.Slovak case,the tribunal used the Broches test to determine the national status of state-owned enterprises,which was allowed by both parties.However,the Broches test still has certain deficiencies and needs further explanation.In addition,although state-owned enterprises have investor status in most IIAs,they are still not proper investors in some IIAs.This paper aims to explore the Enlightenments toChina’s state-owned enterprises and the Chinese government on the basis of analyzing and researching issues above and make some suggestions.Chapter 1 is the basis of the issues discussed in this paper.Section 1 analyzes the particularity of state-owned enterprises,that is,state-owned enterprises have both commercial and national features,and the national feature of state-owned enterprises leads to a competitive advantage,which is the root of the problems mentioned in this paper.Section 2 analyzes the actuality and existing problems of Chinese state-owned enterprises.Section 3 selects the U.S.security censorship and Canada’s net-benefit assessment as examples to analyze the specific censorship to state-owned enterprises acted by host country of investment.Section 4 pointed out that Chinese state-owned enterprises are in a lack of seeking for remedy,resulting in a general trend to bring investment arbitration claim under ICSID.Chapter 2 is the core content of this paper.Section 1 analyzes the ICSID jurisdiction.The application for ICSID arbitration can only be qualified while a state-owned enterprise meets “another contracting state” and “national” respectively.The state-owned enterprise meets the nationality standard of the "other contracting party",but further analysis is needed to judge whether state-owned enterprises meet the requirements of the "national".Section 2 analyzes Broches test theory and the CSOB v.Slovak case’s practice of Broches test,pointing out that result of Broches test belongs to state-owned enterprises’ conduct and the conception of Broches test is relatively vague.Section 3 proposes that Article 8 and Article 5 of the Responsibility of States for Internationally Wrongful Acts be used to determine the "acting as government agents" and "exercising basic government authorities" in Broches test respectively,to make the application of the Broches standard clearer.Chapter 3 of this article is about the status of state-owned enterprise investors from the perspective of IIAs.Section 1 considers whether the traditional IIAs’ investor definition mentions that state-owned enterprises.Most traditional IIAs do not mention state-owned enterprises and related concept,which should be regarded as not precluding the status of the investor in state-owned enterprises.The minority IIAs mentioned the state-owned enterprises include three types: the state-owned enterpriseshave investor status,the state-owned enterprises are explicitly excluded from investor status,and confirm that only one party’s state-owned enterprise have the status of investors;Section 2 analyzes the situation in IIAs where state-owned enterprises are not qualified investors;Section 3 discusses TPP as an emerging international rule,which not only clearly states the investor status of state-owned enterprises in international law-making activities.And compared with the traditional IIAs,it has a new development,that is,through the introduction of the concept of competitive neutrality rules to shape the true state-owned enterprises to a real "national investors".Chapter 4 draws conclusions from the discussion in this paper and puts forward corresponding recommendations: First,state-owned enterprises should actively use ICSID arbitration to protect investment interests,which includes the necessity and feasibility of bringing arbitration claim under ICSID by state-owned enterprises,and suggestions on issues related to the application of ICSID arbitration by state-owned enterprises.Second,the Chinese government must actively take part in the formulation of global investment rules for state-owned enterprises.Third,the Chinese government should unswervingly promote the reform of state-owned enterprises and related systems in China. |
