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《Law Science Magazine》 2017-10
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The Standing of SOE to Bring Investment Arbitration Claim under ICSID

Liang Yixin;  
The standing of SOE to bring Investment Arbitration Claim under ICSID Center must meet two requirements. Firstly,SOE must be the eligible "investor"of the IIAs; Secondly,SOE must be the"national"under the ICSID Convention. For the first requirement,from the perspective of treaty interpretation,not all SOEs meet the requirements of "investor". For the second requirement,the Convention does not stipulate explicitly the standing of SOE. Where claims have been submitted to ICSID arbitration by a State-owned entity,only one instance-the CSOB v. Slovak Republic —— analyzed the question. The tribunal of CSOB case adopted Broches Test to determine " national" status of SOE,which means that a SOE does not have standing under Article 25( 1) if the entity has an agency relationship with the State or is discharging an essentially governmental function. However,the analysis of CSOB case should not receive unconditional acceptance. This paper argues that it should refer to Art. 5 and Art.8 of Draft Articles on the Responsibility of States for Internationally Wrongful Acts,which use "it possesses or has been vested with governmental authority""exercises such authority in the performance of governmental functions"and "in fact acting on the instructions of,or under the direction or control of the State"to determine the two elements of Broches Test. In the future WTO Cases or ICSID cases,China should further strengthen the requirements of "factual exercise of government authority "and "factual state control".
【CateGory Index】: D996.4
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