Research On The Ambiguity Of The Denial Of Benefits Clause Leading To A Dispute Over The Application Of Investment Arbitration

In order to deal with the increasingly serious behavior of "treaty selection" and exclude the improper acquisition of treaty benefits by third parties and non-signatory nationals,countries usually clearly stipulate "the denial of benefits clause" in signing international investment treaties.However,due to the changes in the macro environment of international investment,the complexity of the application of this clause has greatly increased,and countries and arbitral courts have not yet formed a unified international standard on this clause.The denial of benefits clause has become an important issue in international investment dispute and the focus of academic circles.The first chapter mainly studies the concept and practice of the denial of benefits clause,and analyzes its causes based on the results of practice.First of all,from the name of the concept of repudiation of benefits clause is compared between domestic and foreign scholars,define the concept and attribute of the denial of benefits clause.Secondly,it reviews the development history of the denial of benefits clause and points out that the initial intention of the establishment of the denial of benefits clause is to cope with the increasingly serious "treaty selection" behavior at that time,and to exclude the third party non-signatory nationals from obtaining improper benefits of the treaty.Then through carding benefits refused to terms and conditions applicable to arbitration case,through the case of statistics can be seen that the clause in applicable in specific disputes,arbitration and jurisdiction and summarized as "retrospective" in investment arbitration for dispute,and through to the issues of interpretation and analysis,the root of the controversy lies in terms of fuzziness.The ambiguities here include inconsistent text provisions of articles,ambiguous text provisions,different composition of arbitral tribunals,complex methods of treaty interpretation,differences in applicable rules,etc.The second chapter and the third chapter are similar in logical structure,mainly discussing the "jurisdiction" and "retroactivity" concluded in the previous chapter.By citing typical cases to explain and empirically analyze the dispute arising from the application of investment arbitration.Firstly,the specific orientation of the dispute is summarized based on the objection petition of both parties in the case.Secondly,with different investment arbitration cases as empirical support,combined with the similar facts but different ruling opinions of each arbitral tribunal,this paper analyzes the controversial issue.In addition,considering the different types of treaties to which each clause belongs,different international investment treaties are divided into ECT and non-ECT treaties to sort out the conflicts caused by the application of this clause among them.Finally,different treaty interpretation methods are used to explain and analyze the application of the text of the articles under different investment treaties and put forward the viewpoints of this paper.The fourth chapter mainly discusses the practice and perfection of the denial of benefits clause in China.On the one hand,after so many foreign provisions on the denial of benefits clause mentioned above,the practice of the denial of benefits clause in China is examined here,which is helpful to look back to the past and sort out the development of the denial of benefits clause in China,and summarize the characteristics and changes of its development.Then,based on the analysis of the ambiguity of the text of the denial of benefits clause and the resulting disputes in the application of investment arbitration,suggestions are put forward for the improvement of the text of the denial of benefits clause: The first is to form a unified benefits rejection clause,so as to constrain the inconsistency of the clause in different treaties and the complex and changeable applicable environment,at the same time,the necessity and feasibility of this proposal are analyzed and explained;In view of the existing clauses signed by China and the BIT process under negotiation,the author puts forward suggestions on the revision of the benefits-denying clauses from the aspects of procedure,text and application contention.