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Legal Regulation Responding To "Treaty Shopping?in Chinese BIT

Posted on:2020-11-29Degree:MasterType:Thesis
Country:ChinaCandidate:B ShenFull Text:PDF
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“Treaty shopping” of investors will bring harm to the international investment environment,it's usually legal in form,but in essence,it violated the basic principles of international investment law,it should be illegal,and it's necessary for China to respond it by legal means.The protection idea of Chinese BITs has gone from protecting the interests of investors to balancing the interests of both investors and host countries,and its regulations are becoming more comprehensive,it's able to respond to the “treaty shopping” by law means.At this stage,the idea of Chinese to regulate “treaty shopping” is waited to be perfect,the position to regulate such behavior still not clear.Through comparison with other countries and regions,we can find several measures in Chinese BITs to regulate the “treaty shopping”,such as defining “investors” clearly,providing a variety of means of dispute settlement or ruling out investors' benefits by denial of benefits clause.Although these measures are still not proved by treaty practice in our country that can limit “treaty shopping”,its effect can be observed by treaty practice in all over the world,because they also existed in other investment treaties.The definition terms have nearly incapable to regulate “treaty shopping” because of the absent of substantive review;denial of benefits clause can hardly play its role because it contained by few BITs;and the effect of investment dispute settlement clause are influenced by most-favored-nation clause which not strict enough.We should apply both of principle and rule to regulate“treaty shopping” roundly,the principle of fairness-mutually beneficial and good faith should be written down in specific terms to build thesystem of “treaty shopping” norm.To be specific,we should limit the application of most-favored-nation clause,make sure that it can't apply to the investment dispute settlement procedures;provide enough ways to settle investment dispute and choke “treaty shopping” from one of the source;make sure that substantive review can play its role when accept a legal person as an investors,and make better use of denial of benefits clause to control “treaty shopping” in the beginning with definition terms.
Keywords/Search Tags:international investment, treaty shopping, bilateral investment treaty
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