Pragmatic Legal Philosophy As A Tool To Interpret International Investment Law In People's Republic Of China

The aim of this work is to prove that pragmatic legal philosophy is a proper tool to interpret international investment law in People's Republic of China.Pragmatic legal philosophy puts an emphasis on experience,discursiveness and social process of law making and application of law,encouraging broader perspective,when analyzing law.Pragmatic legal philosophy underlines inherently social process of lawmaking and application,dependent on particular circumstances,tradition and history of each jurisdiction.Pragmatic legal philosophy claim that there are several extra-legal factors directly and indirectly shaping law creation and law application,which cannot be ignored while interpreting law.We postulate that using traditional,positivistic approach to legal interpretation is not sufficient and is not suitable to properly understand international investment law,as applied in People's Republic of China.By application of pragmatic legal interpretation approach we can see legal system and law as an effect of historical and discursive process of problem solving,aimed to resolve disputes between human agents.By interpreting international investment law,as applied to domestic Chinese legal system,using pragmatic toolkit of legal interpretation,we can much better understand legal practice and better forecast potential judgement and effects of particular laws application in practice.We contrast pragmatic legal interpretation with positivistic legal interpretation and show how positivistic approach,with its insistence on autonomy of legal system and autonomy of law,is not sufficient to understand legal practice.We take international investment law,as applied in People's Republic of China,as an example because of this branch of law crucial importance for international economy and peaceful economic coexistence between agents in international law.We take national treatment and most favoured nation clauses,as a broadly applied standards of treatment in international law and analyze how they are applied to Chinese domestic legal system.These two standards of treatment are analyzed because of their importance for international investment law.After first introductory chapter,in the second chapter we introduce pragmatic legal philosophy and its way of legal interpretation.We compare pragmatic approach with positivistic legal interpretation approach,pointing out shortcomings and fallacies of positivistic legal interpretation.In the third chapter,after brief introduction to Chinese legal system,with explanation of Chinese legal system characteristics,we describe and analyze sources of international investment law in China,how international investment law is applied to Chinese legal system and what are Chinese domestic regulations on foreign investment.In the fourth chapter the application of national treatment clause to Chinese domestic legal system is being analysed.The positivistic interpretation of this clause is being compared to pragmatic legal interpretation,with insistence on appropriateness and better suitability of pragmatic approach.The fifth chapter follows the fourth chapter in its methodology and analyses the most favoured national clause,with correspondent suggestion that pragmatic interpretation of this standard of treatment is better suited to understand the legal practice of applying this standard in Chinese domestic law.We conclude that pragmatic legal philosophy give us a broader,deeper and more comprehensive view and sense of understanding of how law is applied and what actual factors are influencing legal practice.We also conclude that pragmatic legal philosophy is an elastic tool to understand how international investment law can be applied to legal systems with their own distinct and specific history,tradition and culture.