The Study on the Jurisdiction Problem of ICSID

In today’s open world, international investment is an important way of international capital flows. What between capital‐importing countries and capital‐exporting countries is mutual benefit, as well as conflict of interest. Mutual benefit is the premise and basis of international cooperation, while conflict of interest between countries of different national conditions is a reflection of the different systems and different interests in the area of international investment. In fact, international investment has always been a place where constant conflicts happens between developed and developing countries. Therefore, handling the investment disputes between foreign investors and host countries properly is a sensitive issue relating to the sovereignty of the host country.The settlement of international investment disputes can choose different ways, from the diplomatic protection, local remedies, foreign court proceedings and other traditional ways under the International Law. However, all these ways still cannot solve the increasingly frequent investment disputes. Leading by the World Bank in1965, the first organization focused on the settlement of international investment disputes‐the International Centre for Settlement of Investment Disputes (ICSID)‐was formally established. It is highly valued and accepted by more and more countries, and has become the exclusive choice for more and more investors and their home countries.In addition, the bilateral investment protection agreement (BIT) has been accepted as an important basis for the adjustment of international investment relations for countries. Whereas ICSID has an important influence in the international investment dispute settlement mechanism, more and more BITs included a clause regarding the jurisdiction of ICSID. However, once the jurisdiction clause in the BIT convention is improper, or the acceptance of the jurisdiction of ICSID is not clear, which may lead to a very passive position in settling the investment disputes. And from the existing international practice, this point has been fully proved.Today, China is a big capital‐input country, as well as a capital‐exporting country. Besides, it is also a party to the Washington Convention, and to a large number of the BITs. In order to avoid being disadvantaged in an investment dispute, the study of to what degree should China accept the jurisdiction of ICSID is full of importance.This article will study the provisions of the ICSID jurisdiction in the Washington Convention as a starting point, combine with the practice of ICSID arbitral tribunal for recent years, empirical understanding of the arbitral tribunal has always been to make the results of the award, and derive inspiration or warning significance. At the same time, focusing on the BIT’s influence to ICSID jurisdiction, as well as the acceptance of the ICSID jurisdiction provisions in the BITs signed by China and its historical changes. After a study of China’s position and attitude, combining with the reality of our country and the relevant international agreements for China signed bilateral investment negotiations, come up with some constructive ideas.