Research on Application of MFN Clause in Procedural Issues
|Keywords||MFN clause dispute settlement ICSID|
MFN clause generally applies to the substantive problem. But in recent years there are some foreign investors tried to invoke MFN clause to startup dispute settlement mechanisms stipulated in the treaties with a third state, in order to extend the application scope of MFN clause to procedural matters. And in arbitral practice of international investment, some international tribunals had made enlargement explain for application scope of MFN clause. In such circumstance, it is essential to discuss whether MFN clause can apply to dispute settlement matters and what China can do to cope with the problem.In this thesis, the author firstly introduces the origin of the issue in question, analyzes the typical cases from different angles; and then discusses the rationale for applying the MFN clause to the procedural issues, and finally makes suggestions for China to cope with the issue. The thesis is divided into four chapters.Charter one: outline of MFN. The charter introduces the definition and the develop history of MFN, and then gets to the points of application conditions and exceptions of MFN clause.Charter two: practice of application of MFN clause in investment dispute settlement. In the long-term contracting practice, MFN is only applied to substantive problems. Few countries have made clear stipulations on whether MFN clause can apply to procedure problem. Because the application scope of MFN clauses in international investment treatise is ambiguous, it draws much concern. The thesis then focuses on the typical cases to help illustrate this issue.Charter three: reflection on application of MFN clause in investment dispute settlement. By analyzing the cases, the thesis discusses whether dispute settlement matters belong to the application scope of MFN clause and provides its own opinion.Charter four: present situation of China and the possible countermeasures. In this charter the thesis sets out with arbitral practice of the international tribunals and contracting practice of China to suggest what should China do to cope with the situation.