On The Application Of The Most-Favored-Nation Treatment Clause In The ICSID Arbitration Practice And The Coping Strategies Of China

Most-favored-nation (MFN) treatment clause is one of the most importanttreatment terms in international investment treaties, according to the provision,contracting parties may enjoy investment treatment no less favorable than that of thethird country, its application has seldom been disputed. But since the reward of ICSIDon Maffezini v. Spain, the problem of whether the clause can expand to disputesettlement has troubled the academic and practice circle.The later practice of ICSIDis different from the Maffezini, which makes the problem more complicated. On onehand China is becoming the thriving country to invest outside and attract tremendousinvestment from the other countries, on the other hand China has joined <theWashington Convention> to accept the jurisdiction of ICSID, so it may face ICSIDarbitrations raised by the foreign investors，and Chinese investors may apply theICSID arbitration. Therefore, it is meaningful to study the application of MFN clausein the ICISD practice.The full text includes two parts-the preface and text, the text is divided into threechapters.The preface introduces the new trend of the application of MFN treatment clausein the ICSID, providing the background of the text.The first part provides an overview of the problem of the application of MFNtreatment clause in dispute settlement. Firstly it introduces the origin and historicaldevelopment of MFN treatment clause and the codification of the clause byInternational Law Commission. Secondly, it introduces the nature and the characteristics of ICSID arbitration system. Thirdly, it presents two opposite cases ofICSID, putting forward the problem--why MFN treatment clause will be applieddifferently in ICSID practice.The second part mainly analyzes the interpreting rules of MFN treatment clausein the application of the clause by ICSID. In the application of MFN treatment clause,the arbitration tribunal analyses the problem by three rules,namely the same categoryrule, the text analysis rule, the objective analysis rule.But after observing the analysisof the tribunal, it is found that tribunals apply the rules differently which led to thedifferent conclusions.The third chapter discusses the coping strategies of China to the expandingapplication of MFN treatment clause by ICSID. As China is becoming the thrivingcountry to invest outside and attracts tremendous investment from the other countries,it will face enormous investment risks. Meanwhile, most of the time, the treatiesconcluded by China include the MFN treatment clause, and the treaties expand thearbitration scope. Therefore, China should restrict the application scope of MFNtreatment clause.