1、1On the WTO dispute settlement mechanism and comparison of the ICSIDAbstracts Washington Convention established the Settlement of Investment Disputes International Center (ICSID investment disputes between foreign investors and the host country government provides a better way to resolve that is out
2、side of the host countrys domestic judicial proceedings, the establishment of the International Mediation and international arbitration proceedings the same as an international investment dispute settlement mechanism, the WTO dispute settlement mechanism and ICSID investment dispute settlement have
3、their own advantages and disadvantages, and check for differences help to better the WTO dispute settlement mechanism to resolve international investment characteristics of the dispute. Paper Keywords International Centre for Settlement of Investment Disputes (ICSID WTO dispute settlement mechanism
4、(DSB Investment Disputes First, the system of jurisdiction 2The provisions of Article 25, paragraph 1 Washington Convention, to resolve any legal disputes arising due to investment in the jurisdiction applicable to States Parties of the International Centre of Investment Disputes between the nationa
5、ls of another State Party, the dispute by mutual written consent of both parties to submit to the center. visible investment disputes submitted to the jurisdiction of the center should meet three conditions: First, the parties to the dispute must be a party is a party, the other party is a national
6、of the State party, the second, the nature of the dispute must be directly attributable to the investments and the dispute must be a legal dispute , the third, the jurisdiction of the Centre for Investment Disputes must agree in writing to the parties as a precondition In addition, when both sides o
7、f the center jurisdiction agreed, either party may unilaterally withdraw its consent, therefore, for delivery of disputes to ICSID accepted investments in the home country are generally not seek other means of relief. The jurisdiction of the conditions of the WTO 3dispute settlement mechanism differ
8、ent from the provisions of the Washington Convention and First is the difference of the main elements of the WTO dispute settlement mechanism only applies to members between members of nationals of do not have to participate in the WTO dispute settlement mechanism the qualifications seen the differe
9、nt nature of the two dispute settlement mechanism, ICSID Dispute Settlement Mechanism between the individual and the state, there is only between countries of the dispute settlement mechanism under the WTO framework. Secondly, the WTO dispute settlement mechanism and did not require the parties to t
10、heir written consent to their jurisdiction in accordance with Article 23 of the DSU provisions of paragraph 1, if a member of another member of the measures taken in violation of obligations under the Agreement, or cause the loss of their own interests, or the impact of the agreement goals, that mem
11、ber should not take unilateral action to protect their own interests, but should invoke the understanding rules and procedures to resolve disputes. In other words, disputes between WTO members of the DSU listed in Appendix I 4to the agreement, should apply the WTO dispute settlement mechanism, becau
12、se members accession to the WTO has agreed to accept all the agreements, which include the DSU. therefore, the WTO dispute settlement mechanism for disputes brought by WTO system enjoys the compulsory jurisdiction of the members affirmed without seeking prior consent or written agree to its jurisdic
13、tion, and a certain exclusivity Investment Disputes within the scope of its application to solve the same. Second, the law applies Washington Convention Article 42 on the controversial application of law, rule of law should be in accordance with the parties to the dispute may agree to determine, if
14、there is no such agreement, shall apply one of the Parties to the dispute the State partys law and the rules of international law that may be applicable. the ICSID given the right to party autonomy for the application of law first, followed by the arbitral tribunal rules of international law applica
15、ble domestic law of the host country and, if applicable, the consent of the parties, the arbitral tribunal may rule according to the principles of fair and good and not in accordance with 5The law Thus, the ICSID for the applicable laws and regulations did not make clear, but according to the specif
16、ic circumstances applicable to specific legal or even can not make a decision pursuant to any law. According to the provisions of paragraph 2 of Article 3 of the DSU, the WTO dispute settlement system to provide security and predictability of the multilateral trading system is a core part of the Mem
17、bers recognize that the system is suitable for maintenance of each member in the covered agreements the rights and obligations under, and to clarify the existing provisions of those agreements in accordance with the interpretation of public international law practice DSBs recommendations and rulings
18、 can not increase or decrease the rights and obligations under the covered agreements. “Therefore, the applicable law in WTO dispute settlement limited to the the DSU stated in the applicable agreement on the interpretation of the relevant rules applicable interpretation of public international law
19、practice. practice, often cited to explain the practice of public international law. “ 6Vienna Convention on the Law of Treaties, Article 31 and Article 32 of the Treaty Interpretation is not difficult to find, compared to the ICSID rules, the WTO dispute settlement mechanism clearer requirements in
20、 the application of law, there is a strong predictability for the specific application of the controversial law. Reposted elsewhere in the Research Papers Download http:/Third, the rules of procedure WTO dispute settlement mechanism in the rules of procedure on the ICSID are quite different, which h
21、as more stringent rules of procedure. The DSU provisions of a complete set of procedures, including mandatory consultation, the selective mediation, conciliation, mediation and arbitration, the Group of Experts established and trial, appeal, DSB acceptance and adoption of remedies and sanctions, can
22、 be described as ring interlocking, and every step of the program provides for strict time limits, in order to avoid the delay time to weaken the effectiveness of the mechanism. (A reverse consensus The rules and 7procedures of the WTO dispute settlement mechanism in operation by the Dispute Settlem
23、ent Body (DSB by consensus decision. However, according to the provisions of Article 6 of the DSU, the DSB should establish a group of experts, in deciding whether or not a dispute has set up an expert group meeting, the DSB by negotiation unanimously decided not to establish a group of experts. The
24、refore, DSB real decision-making mainly reverse consensus, that is not all vote against, through, which is also referred to prevail automatically through the decision-making mechanism such quasi-automatically through would no doubt make the DSB in making certain resolutions greatly improve efficienc
25、y, but also the decision to become a form of the DSB for certain matters. (B appeal mechanism Article 53, paragraph 1, of the Washington Convention “shall not carry out any appeal or take any other remedies other than the provisions of the Convention, that ICSID does not allow the parties to the dis
26、pute its appeal against the decision. Different from the ICSID traditional investment dispute settlement mechanism, the WTO dispute settlement mechanism has 8a special appeal for trial appeal the Expert Group to consider the case. DSU 17 made provisions for the establishment of the Appellate Body, a
27、nd the composition of the Appellate Body, functions The applicable procedures detailed provisions conducive to the establishment of the Appellate Body to correct errors or deficiencies of the Expert Group by applicable law, effectively ensure the impartiality and effectiveness of the dispute settlem
28、ent mechanism. (C period of time Since no clear time deadlines the ICSID average processing time of each case up to four years, in some cases the processing time is actually up to 2089 years. Unlike ICSID, the WTO dispute settlement mechanism set strict cases trial period of time, such as DSU Articl
29、e 12, all schedule from the establishment of a panel to release the report of the Expert Group made specific provisions, including the parties and third parties to submit a written statement date, the first and second substantive the date of the meeting, a written reply to the date of the questionin
30、g of the Group of Experts, the date of the submission of the 9debate views, the mid-term review of date, and so on. these period of time the provisions of the WTO dispute resolution efficiency have greater advantages. (D enforcement of awards The real effective implementation of the ruling of decisi
31、ve significance for the settlement of disputes. Of the Washington Convention provisions to ensure the recognition and enforcement of awards made, but the the ICSID ruling in the implementation process may still be obstacles. Convention on the one hand stressed acknowledged the effect of the decision
32、 shall not seek an appeal and other remedies, On the other hand it provides arbitration explanation, amended and canceled three measures, which will still affect the smooth implementation of the ruling. Moreover, although the provisions of the Convention by States Parties agree accept the jurisdicti
33、on of the ICSID as a waiver of immunity from jurisdiction, but did not require the State party to give up immunity from execution, Thus, in the process of enforcement of judgments still may be based on the implementation of the principle of immunity of the Parties and refused to 10carry out. With re
34、spect to the implementation of the rules of ICSID, the WTO dispute settlement mechanism to increase efforts for the enforcement of the award, according to the provisions of Article 21, paragraph 6, of the DSU, supervision by the implementation of the recommendations or rulings is one of the responsi
35、bilities of DSB-related implementation of the recommendations or award should be included in the agenda of the DSB meeting, and remain on the DSBs agenda until the issue is resolved. Secondly, according to the provisions of Article 22 of the DSU, to reach an agreement after the end of the reasonable
36、 period of time is still no compensation The prevailing party may request the DSB to authorize the suspension of concessions or other obligations of the members, and in certain circumstances can select the areas under other agreements, which is taken by the WTO dispute settlement mechanism for the l
37、osing party to enforce the award “cross-retaliation” mechanism, through the form of retaliation, and urged the losing party to the panel or Appellate Body ruling. 11IV Conclusion Through the comparison and analysis, to some extent, the two investment dispute settlement mechanism of the relationship
38、between complementary. WTO dispute settlement mechanism is a very obvious complementarity: ICSID ICSID main settlement of investment disputes through arbitration, the WTO dispute settlement mechanism is resolved through judicial mechanisms of investment disputes by WTO members is based on the releva
39、nt WTO agreements. Both of them complement each other, so that the different nature of investment disputes have access to an effective solution. both complementary better able to overcome the economic dispute settlement mechanism defects, better protection of investment, trade and other international economic activity, more good adaptation the development of the global economy. Reposted elsewhere in the Research Papers Download http:/
