The Analysis to Qualification Issues of State Owned Enterprise Applicants in China under the ICSID Framework
The issue of qualified investor status of state-owned enterprises(SOEs)under the ICSID Convention is directly related to whether SOEs can initiate ICSID arbitration procedures when they encounter investment disputes with the host country,and as a large overseas investment country where the proportion of SOEs'overseas invest-ment is nearly 50%,this issue will have a direct impact on the overseas interests of China's state-owned enterpri-ses(SOEs).At present,the difficulties in determining the investor qualification of state-owned enterprises(SOEs)in ICSID arbitration in China mainly include the unclear definition of the concept of SOEs in domestic laws and the BIT signed by China with foreign countries,as well as the inertia of relying too heavily on preferential poli-cies and government subsidies formed by state-owned enterprises in the historical development process,which has a relatively unfavorable impact on the formation of a fair market competition mechanism.The institutional path to address the dilemma of determining the qualifications of investors in SOEs in China includes further promoting the market-oriented reform of SOEs at the domestic level by taking the"competition neutrality requirement"as a refer-ence,as well as taking proactive measures at the international level by clarifying the eligibility of SOEs to apply for ICSID arbitration in the future signing of the BIT,promoting the improvement of the Broches'standard through the state practice,and pushing forward the revision process of the ICSID Convention in accordance with the relevant provisions of the"Articles on the Responsibility of States for Internationally Wrongful Acts(ARSIWA)",so as to shape a more favorable international investment environment community by means of two-pronged approach at both the domestic and international levels.
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