Research On "Anti-Treaty Shopping" Clause In CETA’s Investment Chapter

The “Anti-Treaty Shopping” are series rules and regulations in International Investment Law which host country can apply to regulate investor’s improper action.In order to defend national interest,ensure treaties are complied appropriate and other investors’ profits,host country should prevent investor from using those weak points of clause in International Investment Treaty.The reason why investor do treaty shopping is to seek higher investment protect level and bigger investment interest.In the international investment dispute arbitration,States seldom achieve their goals by using traditional “anti-treaty shopping” clause.Since 2000,nineteenth cases related to investor use MFN clause as a bridge to select favorable treaty in arbitration procedure were submitted to ICSID and tribunal support investors’ claim in ten cases.It seems the ICSID tribunal don not develop a set of uniform standard which involve “anti-treaty shopping” matter.Case study is one of universal approach which foreign scholars always use when do research on this issue,China’s scholars however like to set rules about how to against treaty shopping,but all of them are not consider the issue by analysis international trade or investment treaties.For the following reasons,EU and Canada reform traditional “anti-treaty shopping” clause and design new clause in CETA.Firstly,international investment dispute tribunal have inconsistent opinion about “anti-treaty shopping” case and give investor opportunities to legalization their actions.Secondly,the “Embedded Liberalism” become essential theory in international investment law,this ideal which request to balance the space between protect investor’s interest and state’s regulatory power is realized by host country.Thirdly,it is easy for company to restructure its nationality and investor have rich and varied methods to do this.Fourthly,ISDS mechanism was applied universal,investor do treaty shopping not only in investment access and treatment matters but also in investment dispute settlement procedural.EU and Canada amend old “anti-treaty shopping” clause and create new clause in the investment chapter of CETA.New “investment access and treatment rules” and “investment dispute settlement rules” are set in CETA which reduce the possibility of investor’s inappropriate treaty shopping and guarantee host country’ s regulatory power.The “Denial of Benefits” clause of CETA,however,will still bring some problems in “anti-treaty shopping” arbitration but the line of thinking and clause structure are worth learning for China.Except for the introduction and the conclusion,this article is divided into five parts,totally about 53,000 words.Part Ⅰ: “The overview of ‘anti-treaty shopping’ clause”.First of all,this part will introduce the history of “anti-treaty shopping” clause and different definitions in international tax law and investment law.Then author will analysis the context why EU and Canada redesigned this clause in CETA and the intractable problems they meet in international investment practice or theory.Author will also propose the standpoint via case study that inappropriate treaty shopping and ICSID tribunal’s conflict awards damage the international investment’s development seriously.Part Ⅱ: “‘Anti-treaty shopping’ clause in CETA’s investment access and treatment section”.This part will focus on investment access and treatment rules when investor establish or operate investment.From the beginning,looking into the conditions that investor may carry on treaty shopping,including “company’s nationality restructure”,“scope of MFN clause application”,“scope of fair and equitable treatment clause application” and “definition of investor and investment”.This part will also mention chaos situation caused by international investment dispute tribunal.Then according to above-mentioned,discuss the positive and negative affect of CETA’s reform.Part Ⅲ: “Anti-treaty shopping clause in CETA’s investment dispute settlement section”.This part is concentrating on investment dispute settlement procedural rules between investor and state.At the beginning author will analyze permanent multilateral investment tribunal and appellate tribunal’s substantiality and procedural rules follow that those assess fundamental solution which is “consolidate jurisdiction”.After that author will study on effect of temporary solutions,for instance “alternative dispute resolve procedure”.The final portion of this part is assessing “anti-treaty shopping” affect that new ISDS mechanism bring to CETA.Part Ⅳ: “Comparative Analysis”.Other international investment treaties are also involving “anti-treaty shopping” clause,so this part will introduce two signification “model treaties”.The first treaty is “US-Mexico-Canada Agreement”,research is on “pre-litigation procedure” in investment settlement settlement aspect.USMCA’s clauses are better than CETA because these clauses provide coordination,continuity rules to host country and investor.Second treaty is “Energy Charter Treaty”,the study is on “Denial of Benefits” clause which always raise dispute in international investment arbitration.Through analyze mentioned treaties author want to find out CETA’s clauses’ advantage and disadvantage.Part Ⅳ: “‘Anti-Treaty Shopping’ in China’s IIAs and the inspiration may draw from CETA”.First of all author will explain deficiencies of “anti-treaty shopping” clause in China’s IIAs.Second step is to elaborate the challenges and opportunities China facing and the project China mapping in international investment area.The significance of this thesis will also put forward in this part which is what can China learn from CETA’s “anti-treaty shopping” clause and how China can do to design such clause in its IIA negotiating or upgrading.