Universal Scale Tipping towards Balance-Applying the MFN Clauses in China-related Investment Arbitration: A New Haven School Reading

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : China and WTO Review / 6권 / 2호
ㆍ저자명 : Yuanchao Bi, Wei Shen

목차

I. Introduction
II. MFN Treatment and Its Applicabilityto Disputes Settlement
A. MFN Treatment
B. Comparability and the More Preferential Treatment Standard
III. China’s Foreign Investment Policy:A New Haven School Perspective
A. New Haven School
B. Chinese Inward and Outward Investment Policy: History and Practice
C. Policy-based Assessment
IV. Investment Arbitration Cases: Past and Future
A. Does the Case Law Guarantee National Sovereignty?
B. Does the Case Law Enable China to Further Attract FDI and Encourage ODI?
V. Policy Alternatives and Recomm endations
A. Chinese Model BIT
B. Investment and Nationality Planning
C. Exchange of Diplomatic Notes
VI. Conclusion
References

영어 초록

The extension of MFN clauses to dispute settlement under BITs is one of the most controversial areas in investment treaty law. Currently, the area is divided into two streams of case law. The award in Tze Yap Shum v Peru and other recent Chinese investment arbitral awards did not side the Maffezini stream. The question on which stream works the best for China is complicated and essentially a balancing exercise. This article examines the question from a Chinese perspective and adopts the analytical framework of the New Haven School. It identifies the issue of comparability of more preferential treatment as the key criterion in determining the question. It reviews the previous case law and assesses the economic, social and cultural factors shaping the Chinese investment policy. From there, the article seeks to discover if the current law helps fulfil China’s policy goals and proposes recommendations accordingly.

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