Abstract
This research is confined to examining international investment dispute resolution, with a particular focus on the ICSID Convention and ICSID arbitration. In particular, it excludes the considerations of politics or diplomacy, given that these elements were specifically and intentionally excluded from the design of the ICSID dispute resolution system.This dissertation examines some of the substantive rules applied in investor-State investment arbitration to explore the nature of balance in the international investment protection regime. Before doing so, the concept or meaning of balance of interests of the parties in investor-State dispute resolution is clarified. To answer the question of whether or not balance is present in the system of international investment dispute resolution, some preliminary questions are answered, such as what can be regarded as balance and whether what is reflected in the practice and outcomes of arbitration represents balance, given that the parties mutually consent to or agree on that.
Observing and analysing the current mechanisms of investor-State dispute resolution from the perspective of balance is the fundamental approach of this work. The approach taken is to examine the various factors involved in investment arbitration and to see whether and how the interests of the parties are balanced. Empirical studies and statistical analyses are the methods used in this research. Should there be an obvious disequilibrium between the two sides, this will be clear, and given the fact that the parties involved would not consent to such a situation, the process could not be considered to be in balance. However, according to the conclusion of this research, it may still be in balance if the parties involved mutually agreed on that.
The primary conclusion of this research is that the principle of balance has been adopted in the creation of the ICSID's processes and the results achieved are in the same direction as that intended by the design.
The interesting finding is that the balance of the system of international investment protection or investor-State dispute resolution is based on the mutual consent of the parties involved. For example, should the ICSID fail in respecting the mutual consent of the parties, it may lead to the loss of the balance of interests between the international investors and the host States. However, the results from this research show that the ICSID system balances the protection of the interests of the parties involved in disputes, although there is a slight indication that some of the tribunals seem to favour States more when the host States, as respondents in cases, are OECD States, which represent the developed States; in the same way, some tribunals support the foreign investors more when the host States in the cases are non-OECD States. This finding is based on three kinds of ICSID cases: 1) investors with OECD home States v non-OECD countries; 2) investors with non-OECD home States v non-OECD countries; and 3) investors with OECD home States v OECD countries. Cases of investors from non-OECD States v OECD States are also examined in order to provide a more thorough understanding of the findings. It should be noted that there are only 10 non-OECD v OECD cases in the current ICSID database, two of which were settled or discontinued. This sample is too small to be included in the statistics. However, the outcomes of these eight cases may greatly change the findings at present. Time is needed to create more samples of non-OECD v OECD cases in order to present the full picture.
There is another interesting finding of this research. The constitution of an ICSID arbitration tribunal is usually a single arbitrator or a panel of three. The research shows that a five-arbitrator panel may actually be more suitable, with the results reflecting the balance of the parties' mutual consent in relation to the facts, jurisdiction, applicable law and rules, and interpretations as a whole.
This dissertation is composed of 4 parts with 8 chapters. Part I discusses the issues and methodology and is comprised of Chapter One, which lists the innovations and the balance issues of the ICSID system as well. Part II examines the concept of balance of international investment arbitration, which includes Chapter Two. This chapter defines the balance of international investment dispute resolution which reflects that mutual consent is the vital issue rather than fairness, and analyses the concept of mutual consent in foreign investment protection. Part III is composed of Chapters Three to Six, which analyse and test the concepts. Part IV is comprised of Chapter Seven and Chapter Eight, which focus on analyses and design of a constitution of a tribunal that may reflect the mutual consent of the parties in disputes better than tribunals constituted of one or three arbitrators, and the general conclusion is included in this Part.
| Date of Award | 14 Sept 2016 |
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| Original language | English |
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| Supervisor | Guiguo WANG (Supervisor) & Wenwei GUAN (Supervisor) |