The Analysis Of Case Plama V. Bulgaria

With the frequency of the international investment activities, international investment treaties became the main form of international economic exchanges. The denial of benefits clause emerged with the development of the balance between the interests of the host country and investors. After several decades of development,this term is being accepted and recognized by more and more countries in the investment practice. In the recent investment agreements signed in China, the denial of benefits clause starts with the occurrence of the simple terms, to rapid development and improvement. It’s not hard to predict that it is inevitable that the denial of benefits clause in investment treaties will become an integral part.Based on Case Plama v. Bulgaria and the specific demands made by the claimant, This thesis analyzes the focus of controversy in this case, and makes adeep research on the appliance of the denial of benefits clause in the current international investment agreements.Based on the analysis of this term’sapplication in China, this thesis proposed on how to better apply this clause in foreign investment agreements when China sign a treaty.This paper is divided into four parts,The first part is the introduction of the basic situation of the case. The background of this case, how this dispute arises and a complete description of the development of the case is mainly introduced.The second part is the focus of controversy and legal questions of the case. This part discusses five aspects of the focus of controversyin this case.The five parts arewhether the arbitral tribunal has jurisdiction, whether the Bulgaria is entitled to exercise the right to deny the benefits, whether this clause has retroactive effect, the burden of proof of two parties and the standard of “own” and “control”. The legal analysis of the focus of controversy, and investment provisions involved in this case wereprimarily discussed.The third part is legal analysis about the denial of benefits clause in this case. This part is about the definition and origin of this clause and the application of the denial of benefits term in the international investment practice; The issues of this clause’s specific application such as jurisdictionorthe specific procedures of applying this clause, whether this term has retroactive effect, the sharing of the burden of proof and other issues are analyzed in this part. And the author makes some comments on a few controversial issues.The fourth part is the case’s inspiration to China. This part discusses our shortcomings in using this term by analyzing the current appliance of the denial of benefits clause, and makes recommendations on how to better use and improve this term in China’s international investment practice.