An Analysis Of The Investment Dispute Case Of Malta Ecological Company And Swiss Schwab Company V. The Kingdom Of Spain

At present,China's all-round opening up to the outside world continues to expand,and the level of such opening up to improve.The number and scale of overseas investment is rising,and Chinese relevant laws,regulations and policies related thereto are constantly revised and improved.At the same time,the scopes,scale and regions of China's foreign investment are constantly expanding as well.In this context,how to prevent China,as an investment host country,from occurring the investment legal risks,and to juggle protecting the interests of China's overseas investment is becoming vital importance.Under the ICSID arbitration mechanism,the investors won the investment dispute arbitration of Opera Fund Eco-Invest SICAV PLC and Schwab Holding AG v.Kingdom of Spain,and were supported by the arbitration tribunal for compensation of huge losses.The theoretical and practical legal issues refracted by the case deserve the attention of the investment host country and investors as well.Based on the theoretical basis of whether the most-favored-nation treatment clause is applicable to ICSID jurisdiction,of the fair and equitable treatment,and of the umbrella clauses,the thesis mainly analyzed the three focuses of disputes in the procedure and substance of the case,and studied the relevant specific clauses and the existing issues of Chinese investment treaty,then put forward specific suggestions and advices to improve such clauses thereof accordingly.Throughout this article the author used the methods of case analysis,comparative study and literature research,beginning with the investment disputes between Opera Fund Eco-Invest SICAV PLC & Schwab Holding AG and Kingdom of Spain.By summing up the controversial issues,the author thoroughly analyzing the issues on whether the treatment clause is applicable to the jurisdiction of ICSID,whether the conduct of the Kingdom of Spain constitutes a violation of fair and equitable treatment,and whether the conduct of the Kingdom of Spain constitutes a violation of the umbrella clause.And then analyzed the related provisions under our country's investment treaties as well as the problems inherent thereto,and finally put forward advices and suggestions on how to avoid and settle the problems relevant to such provisions.In addition to the parts of introduction and conclusion,the text of this thesis comprises of five chapters.The first chapter briefed the case of Opera Fund Eco-invest SICAV PLC and Schwab Holding AG V.Kingdom of Spain Investment dispute.Firstly,it summarized the basic circumstances and the dispute focuses of the case,and then summed up the three main dispute focuses in the author's opinion.The second chapter mainly analyzed whether the MFN clause was applicable to ICSID jurisdiction,which was the first controversy focus of Opera Fund Eco-invest SICAV PLC and Schwab Holding AG v.Kingdom of Spain investment dispute.Based on the summary and analysis of the claims and respective viewpoints of the applicants,the respondent and the arbitration tribunal,the thesis analyzed the first dispute focus of the case in depth in combination with the application of MFN treatment in the ICSID jurisdiction in the prior case.The third chapter basically analyzed the second controversial focus of Opera Fund Ec-invest SICAV PLC and Schwab Holding AG V.Kingdom of Spain Investment dispute case on whether the conduct of the Kingdom of Spain constituted a violation of fair and equitable treatment.Based on the summary and analyses of the claims and respective viewpoints of the applicants,the respondent and the arbitration tribunal,the thesis thoroughly analyzed the second dispute focus of the case in combination with the application of MFN treatment in the prior case and drawn the conclusion that the unilateral act of the Kingdom of Spain violated the fair and equitable treatment under the ECT.The fourth chapter principally analyzed whether the behaviors of the Kingdom of Spain constituted a violation of the umbrella clause,which is the third controversial focus of the case between Opera Fund Ec-invest SICAV PLC and Schwab Holding AG and the Kingdom of Spain.Based on the summary and analyses of the claims and respective viewpoints of the applicants,the respondent and the arbitration tribunal,the thesis analyzed the third controversy focus of the case in combination with the application of the umbrella clause in the prior case,and drawn the conclusion that the conduct of the Kingdom of Spain violated the umbrella clause under the ECT.The fifth chapter was primarily about the enlightenment of such case to China,which has been acquired by studying the Opera Fund Eco-invest SICAV PLC and Schwab Holding AG v.The Kingdom of Spain case.The author,through exploring the specific claims of the claimants,the defences of the defendant and the opinions of the arbitral tribunal,respectively,which are embodied in the Opera Fund Ec-invest SICAV PLC and Schwab Holding AG case adjudicated by the ICSID arbitration,and by the conclusions drawn from the relevant arbitral precedents,put forward the specific improvement suggestions and advices accordingly in regard to the crucial provisions analyzed herein to which our country serving as roles of the host country and of taking consideration of protecting the interests of Chinese investors as well needs to pay attention.