Research On The Application Of The Refusal Of Interest Clause In International Investment Agreements

The Denial of Benefits Clause(DOB)in international investment agreements is mainly to prevent non-party nationals from using catheter companies or shell companies to obtain the nationality of the contracting party,thereby obtaining the benefits of the host country's investment agreement.The Denial of Benefits Clause appeared in the field of international investment in the 1940 s until the first arbitration practice case related to it began in 2005.Although the setting of DOB has already stipulated the applicable requirements for substantial economic activities,possession or control,in practice,the specific determination of these applicable conditions has not been specified in the relevant investment agreements in detail,and there has been no unified practice Applicable standards.In the practice of arbitration,the application of DOB in the same investment agreement may often make a big difference.In this paper,through case analysis of the application of DOB in arbitration practice and a representative text study of DOB,we hope to provide some suggestions for the improvement of the application requirements of DOB.This article first defines the benefit rejection clause,first defines the benefit rejection clause,and analyzes the subject of restriction,the necessity and obstacles of the application of the benefit rejection clause.Then,in the second part,combining the arbitration cases and provisions,using qualitative analysis methods and quantitative analysis methods to analyze the constituent elements of the benefit rejection clause and its existing problems.Thirdly,the third part of the article mainly discusses the difficulties of proof and retrospective power in the application process of the benefit rejection clause.Finally,on the one hand,it analyzes the current situation of the benefit rejection clause in my country's investment agreement,and summarizes the relevant characteristics,and makes suggestions for the improvement of the benefit rejection clause in my country's investment agreement.On the other hand,the host country's application of the benefit rejection clause is a major political and legal risk for my country's foreign investment enterprises,and at the same time,it proposes the countermeasures for my country's foreign investment enterprises.Practical Fields China currently has a small number of existing bilateral investment agreements,and most investment agreements are in the process of being negotiated,especially the formulation of bilateral investment agreements with the European Union and the United States.Under this premise,the application of specific provisions in the investment agreement should be discussed in detail.Among them,the scope of regulation of its interests,applicable targets and how to set up can better safeguard the legitimate interests of foreign investors in China.Therefore,based on the case of the application of DOB in the international investment arbitration and the academic research on DOB,this article puts forward some suggestions on the conditions for the application of DOB and the improvement of this clause in China.At the same time,it proposes countermeasures for the legal risks that the foreign-invested enterprises may encounter in the investment process and are rejected by interests.