Study On No-U-Turn Clauses In Chinese International Investment Agreements

For the sake of preventing investors from submitting the same dispute to both the domestic court and international arbitration to obtain "double dipping",International Investment Agreements stipulates kinds of provisions to control parallel proceedings.The most frequently used provisions in the Bilateral Investment Treaties(BITs)are fork-in-the-road and No-U-turn clauses.As No-U-turn clauses could maintain balance in protection to investors and host states,this paper considers that it tends to replace the fork-in-the-road clauses.Although No-U-turn clauses has great practical value,there is no domestic study on that,this article explores the No-U-turn clauses in Chinese BITs.The No-U-turn clauses were seen in BITs signed between China and Germany,Netherlands,Finland,Switzerland,and Canada.This paper puts forward the possible controversial details in these provisions,and analyzes the timing and subject of the"withdrawal of the cases in Chinese courts".Combined with the analyzation of essence of waiver provision and interpretation by different arbitral tribunals,which could be used for reference by China.Finally,this article will put forward suggestions on how to improve the relevant provisions in the future in China,including the establishment of a more definite point of withdrawal of the case from the domestic court and narrowing the discretion of the domestic courts in withdrawing the suit;setting forth the written waiver requirement,and explicitly requesting the scope of the subject includes not only the claimant,but also the companies owned,controlled directly or indirectly by the claimant.And,under the existing BITs,if the investor submits the dispute to ICSID arbitration after it has acquired the judgment of domestic court,the best response strategy of the Chinese Government is to raise an objection under ICSID Arbitration Rule Article 41(5).