Jurisdiction admissibility in international investment arbitration

摘要

For an investment treaty tribunal to proceed to adjudge the merits of claims arising out of an investment, it must have jurisdiction over the parties and the claims, and the claims submitted to the tribunal must be admissible. Inconsistent interpretations of substantive and procedural principles of international investment law that govern the existence and exercise of the arbitral tribunal’s supremacy to adjudge an investment dispute have caused incoherence in investment treaty arbitration. The thesis is an in-depth study of article 25 of the 1965 Washington Convention on the Settlement of Investment Disputes (ICSID), which articulates the Material, Personal and Consensual requirements for establishing the existence of the adjudicative power (Jurisdiction) for dispute resolution and to exercise that adjudicative power (Admissibility) under the aegis of ICSID. The main findings of the research are as follows:ud1) ICSID’s double-filtering nature, which has been largely overlooked in ICSID jurisprudence, is fundamental to correct decision-making by arbitral tribunals when deciding on admissibility and jurisdiction issues.ud2) ‘Fraudulent intent’ criterion, which borrows its rationale from the concurrent themes in international law jurisprudence, is instrumental to test compliance as required in the upper jurisdictional threshold.ud3) ‘Bona fide investor’ test used to measure compliance with the objective requirements of article 25 of the ICSID runs counter to the object and purpose of the Convention.ud4) ‘Dynamic’ test, rather than plain ‘objective’ test, would be the adequate pattern to ensure compliance with article 25 of the ICSID Convention for the contemplated investment due to evolving meaning of such generic term.ud5) ‘Lex Juridictio’ or set of rules, principals and mechanisms governing jurisdictional and admissibility issues is required as foundation for legal unification and harmonization.