A Study On The Legal Requirements Of Jurisdiction In Typical Cases Of China-related Investor-Host Country Arbitration

Having jurisdiction is a prerequisite for the arbitration tribunal hearing investor-host country disputes to enter the substantive stage of the case.In most investment arbitration cases,the host country as the respondent challenges the jurisdiction of the arbitration tribunal.With the transformation of China into a dual power of capital import and capital export in recent years,China as the host country and Chinese enterprises as overseas investors are active in the field of international investment.The rapid increase of international investment activities inevitably leads to the occurrence of investment disputes,and resorting to international arbitration is an important way for investors to protect their rights and interests.Since the case of Tza Yap Shum v.Peru in 2007,China has gradually begun to participate in the practice of international investment arbitration,including cases involving both Chinese investors and foreign investors suing the host country.Whether the arbitration tribunal has jurisdiction is undoubtedly the primary issue facing all China-related investment arbitration cases.To obtain the jurisdiction to hear an international investment dispute case,the arbitrition tribunal must have the four legal requirements of jurisdiction ratione materiae,jurisdiction ratione personae,jurisdiction ratione temporis and ratione voluntatis.One cannot be without the other,and the absence of any of the elements will lead to its jurisdiction.The determination of jurisdiction ratione materiae involves three aspects: qualified "investment","investment dispute" and "arbitrable investment dispute".The examination of jurisdiction ratione personae focuses on the nationality of the qualified "investor"(i.e.whether it is a national of a contracting state),and the status of a state-owned enterprise as a qualified investor has also been the focus of recent investment arbitration cases.The examination of jurisdiction ratione tempora includes the scope of time application of treaties and the limitation of arbitration.The ratione voluntatis includes consensual form and consensual preconditions.The arbitration tribunal will examine the above four legal requirements of jurisdiction in a case to determine whether its jurisdiction is established,thus directly affecting the outcome of the substantive hearing of the investor-host country dispute.In China-related investor-host country arbitration cases where public information is available,dispute of jurisdiction focus on the above four legal requirements.Due to the limited space of the article,the author focuses on some key aspects of the legal requirements of each jurisdiction,and studies the typical cases as the starting point.The focus of the dispute over jurisdiction ratione materiae of Heilongjiang International Company et al v.Mongolia is whether the case is an investment dispute admissible by the arbitration tribunal.The dispute over jurisdiction ratione personae in the case of Beijing Urban Construction Corporation v.Yemen is whether Beijing Urban Construction Corporation has the status of qualified investor as a state-owned enterprise.The issue of jurisdiction ratione temporis in Ping An of China v.Belgium relates to the connection between the old and new investment treaties,that is,whether the New Testament can be applied to the disputes that occurred during the effective period of the Old Testament but have not yet entered into arbitration or judicial proceedings.The ratione voluntatis for arbitration in the case of Hela Schwarz Gmb H v.China is whether the preconditions for consent to arbitration have been satisfied.The four typical cases also highlight several legal challenges facing China.In order to cope with the challenges brought by the legal requirements of the jurisdiction of China-related investment arbitration,firstly,in terms of the guidelines,China needs to maintain the balance between the interests of investors and host countries,and promote the domestic rule of law and the foreign-related rule of law as a whole.Secondly,in terms of specific measures,China should reasonably define the meaning of key terms such as "investment","investment dispute" and "arbitrable investment dispute" in investment treaties.Clarify the status of state-owned enterprises as qualified investors in the investment treaty,and speed up the formulation of special legislation on state-owned enterprises,so as to defuse the outside world’s doubts about the identity of China’s state-owned enterprises;Establishing clearer time-applicable clauses or time-intertemporal rules in investment treaties;In terms of the preconditions for agreeing to arbitration,China should retain and improve the "consultation period" clause of arbitration,reasonably set up a "exhaustion of local remedies" clause,and replace the "fork-in-the-road" clause with a "waiver of local remedies" clause.