Research On Financial Prudent Exception In Bilateral Investment Protection Agreement

As the development of International direct investment, more and more country recognized the importance of the Bilateral Investment Treaties (BIT).The BIT provides the definition and scope of investment, Fair and Equitable Treatment, Expropriation and Compensation, National Treatment, Most Favor Treatment and the settlement of dispute. But the recent dispute settlement practices make the states recognize that some exception must be set in BIT to balance the right between the host country and investor. These exception can guarantee host country have fully right to take action to regulate the financial system functioned well. This kind of action would not violate the obligation under the BIT. These exceptions include state security exception, public order exception and prudential carve-out etc.In BIT contracting practice, the prudential carve-out has been drafted in model BIT of US and model BIT of Canada. This thesis mainly draws its emphasis on prudential carve-out in BIT. Analyzing some questions of prudential carve-out and put forward some suggestions for negotiating on the prudential carve-out clause when China decides to contract the BIT with US.This thesis is divided into four chapters:ChapterⅠ:This part mainly gives an introduction of the framework of BIT, the new feature of BIT, and selectively analyzes some carve-out clauses which are drafted in BIT recently.Chapter Ⅱ:This part mainly does some research about the relationship between prudential carve-out and prudential regulation under the WTO and BASEL framework in order to analyze the connotation and standard of prudential carve-out.Chapter Ⅲ:This part analyzes the prudential carve-out clause in contracting practice, finding the new tendency of this question from the model BIT Canada, or some BITs relative with Japan, Norway and European Union.Chapter Ⅳ:This part majorly analyzes the provisions about prudential regulation under the Chinese law framework, analyzes the20th clause on financial services in Model BIT of US. It also brings forward some suggestions for negotiating on the prudential carve-out clause when China decides to contract the BIT with US.