Research On "Waiver Clause" In China’s Bilateral Investment Agreement

In order to prevent the investor from submitting the same dispute to the domestic court and international arbitration of the host country at the same time to obtain repeated relief,a variety of waiver clauses for controlling or preventing parallel procedures are set up in international investment agreements,while the clauses that can effectively prevent parallel procedures in bilateral investment agreements are waiver clauses.In the international community,because the waiver clause can better balance the investment rights and interests between the investor and the host country,it has the trend of gradually replacing the exhaustion of local remedies principle clause and the fork in the road clause.Waiver clause exists in a large number of bilateral investment treaties,but there are few arbitration practices applicable to the award.How to make the waiver clause play its due role and avoid repeated relief is the subject of this paper.Therefore,this paper makes a typological analysis of the waiver clauses in international investment agreements based on the time period,and divides them into three versions according to the different characteristics of the waiver clauses in different time periods.From this perspective,this paper focuses on the core clauses in the waiver clauses which are highly accepted and more effective by the international community at the present stage in analyzing the current situation of China’s bit waiver clauses and the development trend of the waiver clauses in international investment agreements,It also analyzes the rules and elements of the waiver clause,so as to provide useful experience for the improvement of bit waiver clause in China.To improve China’s bit waiver clause,we need to focus on the application of the waiver clause in bilateral investment treaties.Therefore,according to the different characteristics of the development stage of the waiver clause,this paper takes investment arbitration cases as research materials and focuses on the analysis path of the waiver clause by the international arbitration tribunal,summarizes the problems that the arbitration tribunal has encountered in analyzing the application conditions of the waiver clause,and aims at these problems,Learn from the core provisions of the waiver clauses represented by the North American Free Trade Agreement and the experience in dealing with the positive conflict of jurisdiction in international civil and commercial litigation.On this basis,combined with the current situation of bilateral investment treaties concluded by China,summarize the beneficial experience in the practice of the waiver clauses,so as to provide reference for China to revise and sign the waiver clauses in bilateral investment agreements in the future.