Study On The Expansion Of Jurisdiction Of ICSID Arbitration

After the end of the Second World War,with the rapid development of capitalism and the acceleration of global capital flows,developed countries have invested a large amount of capital abroad,especially in developing countries.In the process,there have been more and more disputes over investment.In order to settle these disputes,after much discussion,the Convention on the settlement of investment disputes between states and other states,The Washington Convention(hereinafter referred to as the convention),was formally adopted in 1965.The convention,which provides a specialized international arbitration regime for investment disputes between host countries and foreign investors,entered into force the following year and on 14 October 1966.The International Centre for Settlement of Investment Disputes(ICSID)was established under the treaty.Since the establishment of ICSID,ICSID has played an important role in international investment disputes.However,with the expansion of ICSID's influence and the rapid increase in the number of cases accepted each year,through the analysis of some cases in recent years,we can find that the jurisdiction trend of ICSID arbitration is expanding.In the ICSID adjudication procedure,the jurisdiction decision determines whether the investment dispute can be entered into the substantive issue adjudication procedure.Only by guaranteeing the fairness and impartiality of the process and outcome of the jurisdictional decision can the substantive issues of each case continue to be explored.Therefore,it is particularly important to discuss the expansion of the jurisdiction of the arbitral tribunal.There are two ways to extend ICSID's arbitration jurisdiction.The first is an expansion of the Washington convention's Article twenty-five Jurisdiction Requirement.That is to say,the definition of "investment",the identification of "investor" and the time when the dispute occurred are interpreted in an expansive way,and the investment dispute is put under ICSID arbitration jurisdiction.The second is an expansive interpretation through the terms of the bits on which the parties to the dispute are based.That is,to obtain jurisdiction by applying the "Most favoured nation clause" to procedural questions by means of an expanded interpretation of the application of the "umbrella clause";Elevate disputes that are part of domestic law to the level of an international treaty;interpret the "Crossroads Clause" so as not to trigger the "crossroads clause" in a ruling that would extend jurisdiction.There are two ways to extend ICSID's arbitration jurisdiction.The first is an expansion of the Washington convention's Article twenty-five Jurisdiction Requirement.That is,through the definition of "investment",the identification of "investor" and the time when the dispute occurred,the investment dispute will be transferred to ICSID arbitration jurisdiction.The second is an expansive interpretation through the terms of the bits on which the parties to the dispute are based.That is,to obtain jurisdiction by applying the "Most favoured nation clause" to procedural questions by means of an expanded interpretation of the application of the "umbrella clause";Elevate disputes that are part of domestic law to the level of an international treaty;interpret the "Crossroads Clause" so as not to trigger the "crossroads clause" in a ruling that would extend jurisdiction.The reason for the expansion of ICSID's jurisdiction lies in that the agreement of jurisdiction in the Washington convention at the beginning of its formulation gave the arbitral tribunal a certain discretion.The independence of the ICSID arbitration cases,the inadequacy of the ICSID arbitration redress mechanism and the arbitrator's subjective ability to influence the outcome are also the reasons for the expansion of the arbitral tribunal's jurisdiction.In the new era,with the development of economic globalization,how to deal with the expansion of ICSID jurisdiction is also an important issue for the Chinese government and investors.First,ICSID jurisdiction should be carefully accepted,and second,the definition of the relevant concepts in the treaty and the use of some of its provisions should be made clear when bilateral or multilateral treaties are concluded.Finally,China should exert its own advantages and influence in the field of international investment,such as promoting the establishment of ICSID correction mechanism.These measures will enable China to cope with the expansion of the arbitral tribunal's jurisdiction in a more leisurely manner in the new era.