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The Research On ICSID Mercer International Inc.v.Canada

Posted on:2020-01-11Degree:MasterType:Thesis
Country:ChinaCandidate:Z Q XiaFull Text:PDF
GTID:2416330572494141Subject:Foreign trade laws and regulations
Abstract/Summary:PDF Full Text Request
In recent years,with the deepening of capital exchanges between countries,investment frictions have become more frequent.International investment disputes can be resolved by means of diplomatic protection,and the helping of host country,etc.However,in recent years,ICSID has been regarded as the preferred solution by most investors and is increasingly accepted by foreign investors.Mercer International Inc v.Canada is a case submitted to ICSID arbitration on the basis of jurisdictional disputes,national treatment disputes,most-favored-nation treatment disputes and limitation of action disputes.Mercer International Inc lost the case in the end.It will be helpful for China to deal with jurisdictional disputes in the future and for Chinese investor to invest abroad.The conventions in this case are the Washington Convention and the North American Free Trade Agreement,and the specific provisions are Articles 1102,1103,1105,1108 of the North American Free Trade Agreement and Articles 25 to 27 of Chapter II of the Washington Convention.Although the final award of the arbitral tribunal is superficially unrelated to China,the relevant legal issues behind the award,such as the determination of ICSID jurisdiction,violation of the standards of national treatment and most-favored-nation treatment,limitation in law,are of great practical significance for China to deal with international investment disputes as host country and to protect the legitimate rights of Chinese investors in overseas investment.The final result of the case is that the applicant Mercer International Inc lost the lawsuit and the respondent's Canadian government won the lawsuit.I have gained a lot of Enlightenment from the specific trial of the case.Most of the disputes in this case involve the provisions of Chapter 11 of the North American Free Trade Agreement(NAFTA).A profound understanding of the operating rules of Chapter 11 mechanism is of great significance for China to sign international treaties with foreign countries in the future.It is also of practical significance for China to deal with the natural contradictions between protecting the rights and interests of foreign investors and safeguarding national sovereignty.This also reminds the Chinese government to be cautious about the scope of acceptance of international arbitration institutions,otherwise it will make a farce of "lifting a stone and throwing it at one's own feet".When signing BIT with foreign countries,China should adopt a more cautious attitude when dealing with ICSID arbitration clauses,and analyze specific issues.Finally,the case enlightens China to clarify the applicable standards of national treatment and MFN treatment when signing bilateral and multilateral treaties with foreign countries.This paper is divided into four parts as follows:The first part: Introduce the basic facts of the case,and finally point out the focus of the case and the final result of the arbitration tribunal.The second part: to study the basic theory involved in this case.It mainly includes ICSID jurisdiction elements and NAFTA Chapter 11 on national treatment and most-favored-nation treatment and prescription.The third part: the focus of this case: the elements of jurisdiction,most-favored-nation treatment and national treatment,the starting time of the limitation of action.In the course of the trial,the disputes over jurisdiction are divided into two aspects: 1.ICSID's jurisdiction over Order G-48-09 issued by BCUC,British Columbia Public Utilities Commission.2.ICSID's jurisdiction over the power generation baseline established by FortisBC,a state-owned hydropower plant,and Selgar Pulp Mill,a subsidiary of Mercer International Inc,and its power purchase agreement.Disputes over jurisdiction.Because the two parties in this case also involved in the debate on the relationship between national treatment,most-favored-nation treatment and minimum standard treatment,so while interpreting the identification of national treatment and most-favored-nation treatment in detail,the relationship between them is also discussed.The fourth part points out the enlightenment brought to China by Mercer International Inc v.Canada.
Keywords/Search Tags:jurisdiction, national treatment, most-favored-nation treatment, limitation in law
PDF Full Text Request
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