A Study On The "De-commercialization" Of Revocation Review Of Non-ICSID Arbitration Awards

According to the differences between the rules of arbitration procedure and the rules of enforcement of arbitration awards,international investment arbitration awards can be divided into ICSID arbitration awards and non-ICSID arbitration awards.Among them,non-ICSID arbitration awards need to be subject to judicial review by the court in the place of arbitration or the court in the place of recognition and enforcement of awards.Since the international investment arbitration system has greatly learned from or followed the operation mode of the international commercial arbitration system in the early stage of its establishment,the court in the place of arbitration mainly applies the revocation review mode of international commercial arbitration awards to the revocation review of non-ICSID arbitration awards traditionally.With the gradual emergence of the disadvantages of the "commercialization" of the international investment arbitration system,the international community has also begun to discuss how this system should carry out the "de-commercialization" reform in procedure and entity.Whether the review of the revocation of non-ICSID arbitration awards by the court in the place of arbitration should be different from the traditional "commercialization" practice has also attracted the attention and thinking of scholars.However,at present,the research on this problem in China’s academic circles still needs to be in-depth.This paper mainly studies the "de-commercialization" of the review of the revocation of non-ICSID arbitration awards,focusing on whether the court in the place of arbitration should build an independent model in the process of reviewing the revocation of non-ICSID arbitration awards and from which aspects it should build an independent model different from the traditional review of the revocation of international commercial arbitration awards.On the issue of whether the court in the place of arbitration should establish an independent review mode of "de-commercialization",on one hand,through the analysis of the legislative provisions and judicial practice of major countries in the world,it can be found that the "commercialization" practice of the court in the place of arbitration in the process of reviewing and revoking non-ICSID arbitration awards is mainly reflected in the reasons for review,review criteria and review orientation.The "commercialization" practice of the court in the place of arbitration is the result of many factors,including the commercial characteristics of investment disputes,the basic position of supporting arbitration and the early goal of protecting investment.Although the "commercialization" practice of the court in the place of arbitration has a certain internal mechanism,it will easily damage the sovereign interests of states,hinder the smooth implementation of arbitration awards and lead to the legitimacy crisis of international investment arbitration.On the other hand,with the development of the international investment arbitration system,it has been different from international commercial arbitration in the status of arbitration subject,the nature of arbitration claim and the nature of arbitration disputes.Moreover,the bad trend of improperly expanding the scope of arbitration jurisdiction and excessively favoring the protection of investors’ interests in the practice of the investment arbitration tribunal also proves that it is necessary for the court in the place of arbitration to strengthen the judicial supervision of non-ICSID arbitration awards.Therefore,the court in the place of arbitration should build an independent review mode of "de-commercialization".With regard to the aspects from which the court in the place of arbitration should build the independent review mode of "de-commercialization",through the comparative analysis with other existing reform measures,it can be concluded that the revocation review system of the court in the place of arbitration still has an irreplaceable position and role at this stage.Therefore,it is necessary to improve this system in order to give full play to the judicial supervision function of the court.Specifically,the court in the place of arbitration can seek the development path of "de-commercialization" by increasing the examination causes of substantive issues,establishing the substantive examination standards of jurisdiction awards and paying attention to the interpretation of international investment treaties.Under this development trend,China,as a large investment country in the world,not only needs to improve the institutional arbitration system for international investment disputes and establish an interim arbitration system for international investment disputes to attract the parties to choose to conduct investment arbitration in China,so that Chinese courts can have more opportunities as the court in the place of arbitration to review non-ICSID arbitration awards.At the same time,we also need to take advantage of the opportunity of legislative amendment to strengthen the substantive review of foreign-related investment arbitration awards by the court,stipulate that the court can review the substantive issues in foreign-related investment arbitration awards,apply the substantive review standards,optimize the substantive review methods of the court,and finally promote the successful construction of the revocation review system of non-ICSID arbitration awards in China.In addition,as an important participant in the practice of non-ICSID arbitration,our government should also pay attention to revising and updating the contents of the treaty when negotiating or signing international investment treaties with other countries in the future,and Chinese investors should also learn to take corresponding countermeasures at different stages of the review procedure for the revocation of non-ICSID arbitration awards,so as to minimize their own risks.