Research On The Conflict And Regulation Of The Application Of Mfn Clause In International Investment Arbitration

Although MFN treatment originated in the field of international trade,it has become one of the most important treatment standards in the field of international investment protection after continuous development.In the practice of international investment arbitration,there are many conflicts in the application of MFN clause.The fundamental reason is that the broad wording of MFN clause in early international investment agreements provides the possibility of conflict interpretation for the arbitral tribunal.At present,the system of international investment rules is in the period of remodeling.Countries that have concluded international investment agreements and policy makers who formulate investment policies are seeking the predictability of their commitments and scope of interests through the reform of international investment agreements.Compared with other core clauses,MFN clause,because of its multilateral function,will not only expand the obligations under other international investment agreements,but also related to the reform process of international investment agreements.It is the focus of the reform of international investment agreements.Therefore,the current discussion on the MFN clause is particularly important.This paper aims to analyze the conflict of the MFN clause in international investment arbitration,study the changes of the attitude and position of the arbitral tribunal,and put forward some suggestions on the design and response of the MFN clause in China in combination with the current situation of the MFN clause in the treaty concluded by China.The first chapter first introduces the historical development and basic connotation of the MFN clause,as well as the multilateral function and application status of the MFN clause,which leads to the conflict of adjudication in the practice of international investment arbitration.Chapter two and chapter three respectively discuss the conflict adjudication in the application of MFN clause from the two aspects of procedural standards and substantive standards.In the application of procedural standards,the second chapter analyzes the application of procedural standards,mainly from the conflict interpretation of the specific wording of the MFN clause and the conflict interpretation of whether to allow the introduction or change of the scope of national consent through the MFN clause in the arbitration practice.According to the ruling of different positions,this paper analyzes the adverse effects of extending the MFN clause to procedural standards from two aspects: the challenge of the sovereignty of the host country and the inability to compare whether the rights in procedural standards are "more favorable".In the application of substantive standards,the third chapter mainly discusses the use of the most favoured nation clause to introduce the conflict award in the new substantive obligation from the third-party treaty.In the early stage,the arbitral tribunal interpreted this application method more broadly.However,recently,there have been awards restricting interpretation,and the differences mainly focus on the limit of the multilateral function of the most favoured nation clause,Through the analysis of the consequences of the expansion of the MFN clause to the substantive standards,it is concluded that the MFN clause should be appropriately restricted.Finally,the fourth chapter puts forward some suggestions for the reasonable limitation and clarification of the MFN clause,combined with the disputes in the application of the MFN clause and the new development in the international investment agreement,as well as the current situation of China’s MFN clause.