国际投资条约中利益否认条款的评介
发布时间：2019-02-12 16:54
【摘要】：晚近受惠于改革开放政策与人口红利的双重影响，中国经济急速发展，继而成为亚洲，乃至世界经济发展的动力源泉，吸收外资与对外投资实力进一步增强。国际直接投资作为中国经济发展强而有力的推动因素之一，，正日渐受到全世界的共同关注，同时亦成为国际社会所倡导的一种国际经济交往形式。虽然中国国内学术对国际投资领域中的研究日益增多，对于投资协定中的利益否认条款却鲜有着墨。 本文主要围绕“什么是国际投资条约中的利益否认条款？利益否认条款在国际投资争端仲裁实践中所表现出的不足，以及引入利益否认条款的是否为我国抵御条约选购的唯一选择。”这三个方面来展开论述，本文合共分四章： 第一章为国际投资条约中的利益否认条款的概述。将从利益否认条款的概念及历史展开论述；通过论述利益否认条款的概念，解决“利益否认条款是什么”这一问题。然后从利益否认条款的发展历史，了解利益否认条款背后的发展动因。 第二章将探讨利益否认条款与最惠国待遇条款及公平与公正待遇条款之间的关系；投资待遇标准作为国际投资领域中不可或缺的基础，其与利益否认条款存在何种关系？从最惠国待遇条款在争端解决程序上的扩张适用及公平与公正待遇中合理期待范围着手，论述这两项待遇标准与利益否认条款的关系。 第三章通过结合国际投资实践中的仲裁案例对利益否认条款进行分析，主要就仲裁案例所暴露出利益否认条款的一些不足之处，如模糊的用语、条款是否具有溯及力等方面都成为投资争端仲裁实践的争议点，就这些方面进行反思。 第四章主要论述利益否认条款对中国的实际意义，深入探讨中国面对投资者实施条约选购行为时，所应采取的办法。现行国家对条约滥选行为的规制主要存在改变投资者国籍认定标准、缔约国之间联合解释及删除或修改投资条约中的投资仲裁条款、引入利益否认条款这几方面进行限制。通过对比分析，探讨利益否认条款是否为中国抑制条约选购现象的唯一选择。
[Abstract]:Recently, thanks to the dual influence of the reform and opening up policy and the demographic dividend, China's economy has developed rapidly, which has become the driving force of economic development in Asia and even the world. The strength of absorbing foreign capital and investing abroad has been further strengthened. As one of the powerful driving factors of China's economic development, international direct investment (FDI) is being paid more and more attention by the whole world, and has also become a form of international economic communication advocated by the international community. Although China's domestic academic research in the field of international investment is increasing, there is little comment on the profit denial clauses in investment agreements. This paper focuses on "what is the interest denial clause in international investment treaties?" The deficiency of interest denial clause in the practice of international investment dispute arbitration, and whether the introduction of interest denial clause is the only option for our country to resist the purchase of treaties. " This paper is divided into four chapters: the first chapter is the summary of interest denial clause in IIT. This paper discusses the concept and history of interest denial clause, and solves the problem of what interest denial clause is by discussing the concept of interest denial clause. Then, from the development history of interest denial clause, understand the development motivation behind interest denial clause. The second chapter will discuss the relationship between the interest denial clause and the most-favoured-nation treatment clause and the fair and just treatment clause. As an indispensable foundation in the field of international investment, what is the relationship between the interest denial clause and the investment treatment standard? This paper discusses the relationship between the two treatment standards and the benefit denial clause from the view of the extension and application of the most-favoured-nation treatment clause in the dispute settlement procedure and the reasonable expected scope of the fair and just treatment. The third chapter analyzes the interest denial clause by combining the arbitration cases in the international investment practice, mainly on the arbitration cases exposed some shortcomings of the interest denial clauses, such as vague language. Whether the clause has retroactive effect has become the dispute point in the practice of investment dispute arbitration. The fourth chapter mainly discusses the actual significance of the benefit denial clause to China, and probes into the methods that China should take when it faces the investors to carry out the treaty purchase behavior. The existing national regulation of treaty indiscriminate selection mainly includes changing the criterion of investor nationality, jointly interpreting and deleting or modifying the investment arbitration clause in investment treaty, and introducing the interest denial clause to restrict it. Through comparative analysis, this paper discusses whether the benefit denial clause is the only option for China to restrain the phenomenon of treaty purchase.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996.4
本文编号：2420605
[Abstract]:Recently, thanks to the dual influence of the reform and opening up policy and the demographic dividend, China's economy has developed rapidly, which has become the driving force of economic development in Asia and even the world. The strength of absorbing foreign capital and investing abroad has been further strengthened. As one of the powerful driving factors of China's economic development, international direct investment (FDI) is being paid more and more attention by the whole world, and has also become a form of international economic communication advocated by the international community. Although China's domestic academic research in the field of international investment is increasing, there is little comment on the profit denial clauses in investment agreements. This paper focuses on "what is the interest denial clause in international investment treaties?" The deficiency of interest denial clause in the practice of international investment dispute arbitration, and whether the introduction of interest denial clause is the only option for our country to resist the purchase of treaties. " This paper is divided into four chapters: the first chapter is the summary of interest denial clause in IIT. This paper discusses the concept and history of interest denial clause, and solves the problem of what interest denial clause is by discussing the concept of interest denial clause. Then, from the development history of interest denial clause, understand the development motivation behind interest denial clause. The second chapter will discuss the relationship between the interest denial clause and the most-favoured-nation treatment clause and the fair and just treatment clause. As an indispensable foundation in the field of international investment, what is the relationship between the interest denial clause and the investment treatment standard? This paper discusses the relationship between the two treatment standards and the benefit denial clause from the view of the extension and application of the most-favoured-nation treatment clause in the dispute settlement procedure and the reasonable expected scope of the fair and just treatment. The third chapter analyzes the interest denial clause by combining the arbitration cases in the international investment practice, mainly on the arbitration cases exposed some shortcomings of the interest denial clauses, such as vague language. Whether the clause has retroactive effect has become the dispute point in the practice of investment dispute arbitration. The fourth chapter mainly discusses the actual significance of the benefit denial clause to China, and probes into the methods that China should take when it faces the investors to carry out the treaty purchase behavior. The existing national regulation of treaty indiscriminate selection mainly includes changing the criterion of investor nationality, jointly interpreting and deleting or modifying the investment arbitration clause in investment treaty, and introducing the interest denial clause to restrict it. Through comparative analysis, this paper discusses whether the benefit denial clause is the only option for China to restrain the phenomenon of treaty purchase.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996.4
本文编号：2420605
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