The Disputes And Development Of Application Of The MFN Clause In The International Investment Law

The Most Favored Nation Treatment(MFN)clause derives from the field of International Trade.It plays an irreplaceable role in the field of international investment as a mean of guaranteeing the non-discrimination principle.The MFN clause harmonizes levels of treatment provided by different international investment agreements and bilateral investment treaties to foreign investors,to protect foreign investors from less favourable treatment.In addition,MFN clause balances the interests between the host-state and foreign investors.However,it remains some disputes about the application of the MFN clause in the international investment arbitration.The First Chapter introduces the definition,history and developments of the MFN clause,after which disputes of application of the MFN clause are discussed from three perspective.In the Second Chapter,it discusses the general disputes derives from the incorporation from third-state BITs through the MFN clause,such as the instantaneous and automatic nature of the MFN clause and in which way it should be interpreted;whether the MFN clause can be applied to pre-existing treatment(this question includes the disputes of adopting the ordinary meaning of the clause or contracting parties' intention to interpret);the “broader package”—whether a specific provision can be incorporated through the MFN clause or should not be considered separately but as a package.The Chapter Three will focus on the question that whether the MFN clause can be applied to procedural issues(i.e.the ISDS issues),including disputes caused by the language of the MFN clause,the exception of the MFN clause and the interpretation of the MFN clause.The Chapter Four will explain the restriction of application of the MFN clause to substantive provisions.This chapter starts with ejusdem generis principle,then particularly analyses the tribunal cases in which the claimants tried to invoke the MFN clause to import the Umbrella Clause and the Fair and Equitable Treatment.From Chapter two to Chapter Four,after deeply discussing disputes of the application of the MFN clause,this dissertation analyses the decision of recent cases of international investment arbitration and the development of MFN clause in newly concluded investment treaties.Finally,a conclusion is drawn to explain how these developments affect forementioned disputes.At last,taking the development of MFN clause in the field of international investment,BITs concluded between China and other countries and the situation of our country in the international economic and trade into consideration,the Fifth Chapter of this dissertation offers proposal for China to stipulate MFN clause in BITs in the future.