A Study On National Treatment Clauses In Bilateral Investment Treaties

In bilateral investment treaties(BIT),the national treatment is a main treatment given by host countries to foreign investors(and/or investments).However,the BITs in China do not provide pre-establishment national treatment.“Communique of the Fifth Plenary Session of the 18 th Communist Party of China Central Committee” clearly stated that :“ perfect the law system of service trade,implement the management model of pre-establishment national treatment with a negative list comprehensively,and steadily open service industries wider to the outside world".At this point,China promotes the reform of the national treatment system in the form of national policy documents,and promotes to revise and perfect the negative list.This paper is divided into five chapters.Chapter 1 introduces the history and current situation of national treatment in BIT,specifically describes the mode of national treatment in U.S.and Canada BIT,and analysises exception clauses of pre-establishment national treatment in U.S.and its reference for our country.In Canada BIT,not all BITs provide pre-establishment national treatment,it according to negotiations with other countries.In chapter 2,it specifically describes national treatment clauses in BITs in China,including the historical origin,expression classification and national treatment limitations.In chapter 3,it specifically describes pre-establishment national treatment with a negative list,it divided into four parts: the first part describes the meaning and significance of negative list and its influence on foreign investment management system.The second part introduces Shanghai Free Trade Zone as a negative list pilot and its insufficient.The main content of the third part is the provisions of the negative list in "Foreign Investment Law(Draft)" and its analysis.The main content of the fourth part is the background and evolution of negotiations between China and the US over BIT and its impact on our country.In chapter 4,it takes three typical arbitration cases as an example to analysis the application of national treatment clauses in international investment arbitration,and the hidden danger of arbitration of our national treatment clauses.In chapter 5,it mainly presents several recommendations on national treatment clauses in China: First,we should comb and summarize the existing BITs and draw up unified BIT model to deal with problems encountered in the contracting timely and safeguard the interests of China.Second,for essential security interests exception clauses,we did not follow a unique model,and we can refer to the United States 2012 model BIT.Third,we should legalize pre-establishment national treatment with a negative list by revising and perfecting "Foreign Investment Law(Draft)",and draw up the negative list cautiously.