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Study on Legal Issues of ICSID Jurisdiction Clause in BITs

Author: SuChang
Tutor: WangShuMin
School: Dalian Maritime University
Course: Law
Keywords: BITs ICSID Jurisdiction
CLC: D996.4
Type: Master's thesis
Year: 2010
Downloads: 108
Quote: 1
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Abstract

Virtually all BITs contains provisions of disputes settlement. International Centre for Settlement of Investment Disputes (the ICSID) was established under the Convention ratified by World Bank on 1965 for the purpose of dealing with international investment disputes between one Contracting State and a national of the other Contracting State. Thereafter, whether disputes settlement provisions in BITs contains the reference to the consent of jurisdiction under the ICSID and to what extend is the disputes settlement pursuant to the jurisdiction constitutes the basic contents of terms and conditions, and which is also called ICSID jurisdiction provisions. How to regulate ICSID jurisdiction provisions in BITs serves the major fundamental interests of the country in the field of international investment. This Article, by linking the relevant practice of international legislation and judicature makes an in-depth research into the ICSID jurisdiction provisions, and proposed own opinions on regulating disputes settlement provisions under the jurisdiction of ICSID. Apart from the introduction and conclusion, the main text of this Article is divided into four parts:Chapter One acknowledged the historical appearance and development of BITs and made theoretical analyze on the investment protection essence of BITs. Moreover, the ratifying of Washington Convention offers a new methodology for solving the disputes aroused from international investment. The ICSID jurisdiction provisions has become important provisions in BITs for solving the disputes of international investment.Chapter Two demonstrated the rules and regulations in Convention for the provisions under the jurisdiction of ICSID. Virtually, the Convention provides comparatively complete procedural framework for disputes settlement provisions under the jurisdiction of ICSID, meanwhile, which hence leads to a result to increase the difficulties when regulates the provisions under the jurisdiction of ICSID.Chapter Three made comparison with regards to the patterns of provisions under the jurisdiction of ICSID:the developing countries had experienced the process dynamically from rejecting completely to accept cautiously, and then to adopt completely, finally resumed to the condition of accepting cautiously. The developed countries consistently advocated adopting completely in initial stage and tended to accept cautiously after repeated cases of being sued, numerous terms of waivers being regulated when the provisions under the jurisdiction of ICSID constitutes. China’s attitude towards provisions under the jurisdiction of ICSID had changed from rejecting completely to accept cautiously, and showed a tendency of adopting completed.Chapter Four based on the rules and regulations of Washington Convention and practice of international BITs concluded, this Article proposed own opinion in provisions under the jurisdiction of ICSID constitution, that is, to follow different ways of acceptance in light of the actual conditions of different countries, i.e., to adopt the pattern of accepting modestly when constitutes the provisions with developed countries; to adopt the pattern of accepting completely with major waivers when constitutes the provisions with developing countries; The Article emphasized to specify the "Exhaustion of local remedies " and "applicable to host country’s law" as well as to exclude the "most-favored-nation clause" from the disputes resolution procedure when the provision of disputes settlement under the jurisdiction of ICSID constitutes.

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