The Dilemma in Judicial Review of Non-ICSID Investment Treaty Arbitration and Response Thereto:From the Perspective of Treaty Interpretation and Application by Courts
As demonstrated by some high-profile cases like"the Sanum Case",the current regime of judicial review of non-ICSID investment treaty arbitration is faced with doubts and controversies and thus is in a dilemma to some extent.Controversies arising from the deci-sions of national courts mainly focus on decisions on the interpretation and application of rele-vant international investment treaties.Analyzing this issue from the perspective of the interpre-tation and application of investment treaties in question by courts of judicial review helps us to understand the dilemma and to think about how relevant states,including China,could respond to it.By analyzing the issue from the perspective of the interpretation and application of invest-ment treaties by national courts,we can see that,on the one hand,due to the application of commercial arbitration judicial review legal system,courts of judicial review face institutional difficulties in interpreting and applying relevant international investment treaties,as they do not have sufficient legitimacy and neutrality to be subjects of interpretation and application of inter-national investment treaties.On the other hand,the commercialized position of the relevant na-tional courts exacerbates the difficulties faced by this regime in practice and raises doubts about the impartiality of the interpretation and application of investment treaties by judicial review courts and their conformity with relevant principles of the law of treaties.To reform the non-IC-SID investment treaty arbitration system,we should pay attention to the issue of treaty interpre-tation and application in the process of judicial review.Under the current legal framework of non-ICSID investment treaty arbitration,relevant states,including China,should attach more importance to and strengthen the regulation of judicial review of non-ICSID investment treaty ar-bitration by international investment treaties that they have concluded.Specific recommenda-tions for states concerned to respond to this dilemma include:improving investment treaty provi-sions on the procedure for the selection of the place of arbitration for non-ICSID investment arbi-tration;providing in investment treaties that the joint interpretation of treaties by signatory states shall be binding on judicial review courts of non-ICSID investment arbitration;promoting the es-tablishment of a global mechanism for the review of or appeal against international investment treaty arbitration awards;encouraging national courts to reach a consensus on the principles and rules to be observed in the interpretation and application of treaties in the judicial review of non-ICSID investment arbitration;and stipulating in investment treaties that treaty-based investor-state disputes will no longer be resolved through non-ICSID arbitration,namely,the legal system of commercial arbitration will only apply to contractual disputes between states and investors.
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