Research On Denial Of Benefits Clause In International Investment

Denial of benefits clause, Originally Starting in the Friendship Commerce Navigation treaty which signed between the United States and some other countries,for safeguarding the national economy security and restricting diplomatic protection.Recent years,the international investment are increasing more frequently,the main form of investment is diversified,which lead to thus phenomenon that some Non-state investors,transforming their identity will obtain benefits of investment by using treaty selection.Those makes the clause become better and approaching perfect day by day.As a potential and protective clause,it mainly for supplying standard about how to affirm the nationality of investors and promoting those investments to link the economy of host country more closely,which can prevent the non-State party from obtaining benefits of treaty free.Recently,bilateral investment treaties and regional investment treaties signed between China and other countries also includes the treaty,and improved its content.It can be predicted that the importance of denial of benefits clause will become the general knowledge of most countries.However,some internal arbitration about this clause exposed its weakness that the content of this clause are simple and not detailed.Particularly,those case that involve denial of benefits clause in the Energy Charter Treaty raised a lot of controversy in the academic.There is no doubt that,there are still many problems in the clause,whether in the setting of the entity substance or in the application of law,which has been unable to satisfy of the practice of settling disputes.The objective of this paper is to analyze the issue of the application of denial of benefits clause by combining the relevant cases and the related investment treaties,which expected to be useful for the formulation of the clause when China signs investment treaty in the future.This paper will analyze problem via methods of demonstrational analysis as well as comparative analysis.The first chapter is a summarize of the clause, which to discuss the development of the clause and the expression in the different texts;The second chapter is about the interpretation of the substantive elements of it;The third chapter is to analyze the application of the procedure of it;The last chapter is about how to improve this clause in the future.