MFN Clause Applicable Studies In Terms Of Dispute Settlement Procedures

About the MFN clause dispute involves only entity problem for a long time. Butinternational investment arbitration practice in recent years, many investors try toquoted based MFN clause in the treaty concluded between the country and the hostcountry, to apply to the host country and the third countries forged the disputesettlement mechanism in the third-party treaty, which expanded the scope ofapplication of MFN clause to dispute settlement matters. Involves the MFN clausewill apply to dispute settlement procedures on issues of all kinds of internationalarbitration case, the international investment dispute settlement center (ICSID)accounted for the vast majority of cases, and most ruled in favor of MFN clause applyto dispute settlement matters. Impregilo S.P.A. V the republic of Argentina’s supportand opposition, to illustrate most-favoured-nation clause applies in the settlement ofdisputes involved problem provides the framework. Main point of this article is: theMFN clause will apply to dispute settlement matters were explained, and will be sureto distinguish two types of terms, one kind is right terms and for another kind is theterms of the conditions needed to obtain the rights. Satisfy these conditions is toobtain basic treaty rights in the premise, not through the MFN clause to introduce ordemand lower more favorable conditions. Based treaty that would lead to gain rightsconditions can’t meet the hamper treaty apply and the right to enjoy. Basis (for example, for the condition of the subject, if the treaty applies to countries with70℅foreign holdings in the company, cannot on the basis of MFN clause to introduce aclause that allows only20℅of foreign ownership of national companies also getprotection.) These two types of terms are contained in treaties "all items", and in factMFN clause does not apply to treaties "all items", MFN clause applies only to theright terms. At the same time, most rights at the international level are not allowed toforce through the process of jurisdiction, the jurisdiction of the treatment never existwithin a physical treatment, of course. So "all items" is not, of course, including thejurisdiction of the treatment. Therefore according to the mentioned "all items" or"anything" case, as the wave base case, the arbitration tribunal almost cover the MFNclause agreed that the dispute settlement rules of view is not accurate.This article altogether is divided into three chapters. The first chapter expoundsthe origin of the MFN clause and the suitable conditions. First explains the concept ofMFN clause and its historical development. And then introduces the applicablecondition of MFN clause and exception. Finally introduced the MFN clause ininvestment dispute arbitration practice, and must be sent in ICSID arbitration caseswith negative views and summarized.Second chapter in the perspective of a case of Impregilo company v. the republicof Argentina, combined with the case ruling opinion, interpretation of MFN clausedispute settlement procedures applicable problem, the premise of interpretation MFNclause, the existing three types of "against MFN clause applies to the disputesettlement mechanism analysis" thinking and correction, put forward Suggestions onMFN clause application problem analysis: for the rights of different conditions andrights itself, in the bilateral investment treaty jurisdiction established preconditions,whether it is main body, the underlying conditions, aging condition or conditionsdon’t meet is agreed to arbitration, investors can benefit from the treaty stipulated inthe arbitration jurisdiction and will not be able to according to the dispute settlementprocedures in MFN clause to introduce other treaty to circumvent these conditions toobtain the arbitration jurisdiction.The third chapter analyzes the expansion of the MFN clause apply risk, Maffezini case type approach brought treaty of choose and buy risk, avoid the risk of thejurisdiction of the court, and any expanding jurisdiction of risk. So on MFN clauseapply to dispute settlement matters should be limited, not through the MFN clause tocreate does not exist the permission of the arbitration shall be by MFN clause to avoidsubstantial preconditions. Has the dual identity of capital importers and capitalexporter in China, facing the expansion of MFN clause in bilateral investment treatyapplicable to procedural matters of the problem, our country should regard differentsparring with each other situation, actively take some protective measures.