Study The Most-favored-nation Clause In International Investment Agreements

This dissertation focuses on the research on the Most-favored-nation clause (MFN clause) contained in international investment treaties. Accompanied with the constant increase of international investment flow between countries since the 1990's, the number of international investment treaties, especially the bilateral investment treaties has also increased substantially. The MFN clause, one of the core clauses in international investment treaties, plays an important role in the process of the liberalization of international investment. Despite of the long history of MFN clause, there still exists many unsolved questions in the application of MNF clause in the settlement of international investment disputes. States have not constituted constant international practice as to such question, and the scholars form different countries also have not reached any common ground.The dissertation consists of seven chapters. In the first chapter author gives a general introduction to the origin and development of MFN clauses in international law, and gives some analysis on the law value of the MFN clause. Then the author introduces the drafting process of the Draft Articles on Most-Favored-Nation Clauses by International Law Commission (ILC) in 1978 and some studies on MFN clauses by other international organizations. At the last part of the chapter, the author studies some of the ICJ cases involving the MFN clauses. In the second chapter the author gives a rough description of development of international treaties and the MFN clauses therein. In the third chapter and forth chapter the author analyses the subjects, application scope and operation system of MFN clauses in international investment treaties. In the fifth chapter the author does some research on the exception rules of MFN clauses, while in the sixth chapter the author studies the MFN clauses in GATS and FTA/RTA. In the last chapter the author researches China's recent practice on international investment treaties and the MFN clauses therein, and gives suggestions for China's ongoing international practice. The dissertation holds that the development of MFN clauses in international investment treaties shows that there is no constant practice in international society, so there is no customary international law for MFN clauses. The different wording of MFN clauses in international treaties also indicates that the MFN treatment obligation is just a kind of treaty obligation between contracting parties.Because of the particularity of the subjects and objects in such treaties, the application of MFN clauses in international investment treaties is different from its application in other treaties or conventions, which is the focus and significance of this dissertation. Firstly, there are many differences between the definitions of "investors" and "investment" in different treaties, which indicates the application objects of MFN clauses in different treaties, is not always the same. Secondly, because of the different wording of MFN clauses in different treaties, the application scope of MFN clauses varies accordingly. And the investor-state disputes settlement system, which is included in almost all BITs, makes the application of MFN clauses in international investment treaties more complicated. In recent international investment arbitrations, different tribunals tried different ways to analyze such questions and gave their individual awards. The scholars around the world also do not have reached common conclusion for this question. For the problems mentioned above, states becomes prudent to the MFN clauses, and the appearance of MFN exception becomes common in the international investment treaties, which shows the concerns to such subjects from contracting parties. The dissertation also looks into the application of MFN clause in GATS and FTA/RTA. As to FTA, the dissertation holds that, though the legal base of FTA/RTA derives from WTO Agreement, the scope of FTA/RTA goes far beyond WTO Agreement. Some of the chapters in FAT/RTA have MFN clauses while other chapters do not. Therefore, the rights and obligations in different parts of FTA/RTA maybe differs a lot.After the research of international treaties practice and international investment case study, and also after some analysis of China's recent BIT practice and China's development of importing and exporting investment, the author suggests that China should re-evaluate the influence of international investment treaties and the MFN clauses herein to China's economic development.