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China and Shanghai Cooperation Organization: Reconsideration and Improvement of Multilateralizing Effect of Most Favored Nation Clause in BIT

https://doi.org/10.17803/2713-0533.2024.3.29.534-568

Abstract

Since the Maffezini case, debates upon the application of the Most-Favored-Nation (MFN) clause have never stopped. Research from the perspective of the Shanghai Cooperation Organization (SCO) can test the way for further advancement of this issue. The analysis on the international investment arbitration cases involving the SCO states may shed some light on the crucial point on dispute. At present, the bilateral investment treaties (BIT) between China and other states of the SCO are in an urgent need of renewal in order to meet the interests of deepening investment cooperation. Problems of fragmentation of the interpretation method and of unpredictability of the interpretation conclusion of the MFN clauses manifested in international investment disputes involving SCO states will provide concrete preventative suggestions on the updating of the wording of MFN clauses. Under SCO framework, the multilateral effect of the MFN clause can play a model role for other regional integration organizations to build an integrated and multilateral investment treatment system in the fragmented and bilateralism-based framework of international investment law, and in fact promote investment facilitation for regional organizations.

About the Authors

R. Yanyan
China National Institute for SCO International Exchange and Judicial Cooperation
China

Ren Yanyan, PhD, Assistant researcher

Shanghai



Zh. Zhixin
Shanghai University of Political Science and Law
China

Zhao Zhixin, Master of International Law

Shanghai



References

1. Dolzer, R. and Schreuer, C., (2012). Principles of International Investment Law. Oxford University Press.

2. Garmoza, A.P., (2010). Extending Application of Most-Favored-Nation Treatment to Dispute Resolution Clauses of Investment Treaties. International Commercial Arbitration Review, 2 (2), pp. 12–29.

3. Huang, Y., (2022). Interpretation of International Investment Arbitration Treaties: Value Trade-off and Rule Construction. Commercial Arbitration and Mediation, 6, pp. 49–59.

4. Jin, Y., (2020). Consistency of Treaty Interpretation in International Investment Dispute Settlement: Practice Conflict, Value Reflection and Reform Goal. Global Law Review, 5, pp. 178–192.

5. Mingxin, Zhu, (2015). Appearance and Essence of MFN Clause’s Application on Investment Dispute Settlement Procedure: from the Perspective of Treaty Interpretation. Law and Business Research, 3, pp. 171–183.

6. Mrisho, M.I., Tran, T.K.D., Ghani, H.U. and Kipanga, K.B., (2023). Investor-State Dispute Settlement and the Application of the Rule of Law under the ICSID Convention. US-China Law Review, 7, pp. 297–314.

7. Perez-Aznar, F., (2017). The Use of Most-Favoured-Nation Clauses to Import Substantive Treaty Provisions in International Investment Agreements. Journal of International Economic Law, 4, pp. 777–806.

8. Qiao, J., (2011). Research on the Applicability of the MFN Clause in BITs in Dispute Settlement. Journal of Rule of Law, 1, pp. 61–69.

9. Schill, S.W., (2009). Multilateralizing Investment Treaties Though Most-Favored-Nation Clauses. Berkeley Journal of International Law, 2, pp. 492–569.

10. Sharmin, T., (2018). Application of MFN to the Substantive Standards: Why Should We Re-Investigate the Uncontested? Manchester Journal of International Economic Law, 15, pp. 85–113.

11. Ustor, E., (1974). Fifth Report on the Most-Favoured-Nation Clause by Mr. Endre Ustor, Special Rapporteur. New York, United Nations.

12. Wang, S., (2019). Legal Issues of Investment Facilitation in Shanghai Cooperation Organization. International Business Studies, 1, pp. 26–39.

13. Wang, X., (2021). The Principle of Exhaustion of Local Remedies in the ISDS Provisions of Bilateral Investment Treaties between China and Five Central Asian States. Journal of Guangxi Social Sciences, 11, pp. 92–100.

14. Wang, Y., (2020). From Procedural to Substantial: New Disputes on the Application Scope of MFN Treatment in International Investment Treaties. Tsinghua Law Journal, 5, pp. 182–207.

15. Wei, W., Sun, K., (2023). Study on the Eɤ ciency of China’s Direct Investment in Major SCO Countries. Northeast Asia Economic Research, 6, pp. 77–90, doi: 10.19643/j.cnki.naer.2023.06.007.

16. Xu, S., (2013). “Bilateralism” and “Multilateralization” of International Investment Treaty Protection. Wuhan University Review of International Law, 16, pp. 256–278.

17. Yannick, R., (2007). The Application of the Most-Favored-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties: Domesticating the “Trojan Horse.” The European Journal of International Law, 4, pp. 757–774.


Review

For citations:


Yanyan R., Zhixin Zh. China and Shanghai Cooperation Organization: Reconsideration and Improvement of Multilateralizing Effect of Most Favored Nation Clause in BIT. Kutafin Law Review. 2024;11(3):534-568. https://doi.org/10.17803/2713-0533.2024.3.29.534-568

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ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)