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Richard Pomfret - One of the best experts on this subject based on the ideXlab platform.
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China and Regional Integration
China and the World Economy, 2010Co-Authors: Richard PomfretAbstract:China’s accession to the World Trade Organization in 2001 signalled an important milestone for the multilateral trading system. China’s share of world trade had increased greatly since the country’s adoption of an ‘open-door policy’ in 1978–9.1 Incorporating China into the WTO system was a major step forward for the rules-based multilateral trading system whose cornerstone is the unconditional Most-Favoured Nation principle, that is, the commitment to treat all trading partners equally.
Stephan W Schill - One of the best experts on this subject based on the ideXlab platform.
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allocating adjudicatory authority Most Favoured Nation clauses as a basis of jurisdiction a reply to zachary douglas
Journal of International Dispute Settlement, 2011Co-Authors: Stephan W SchillAbstract:The present article comments on Zachary Douglas, The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails, published in the February 2011 issue of this Journal. It supports Douglas’ argument that arbitral tribunals should interpret investment treaties in accordance with general principles of law, and reason their decisions accordingly, in order to contribute to more consistency and coherence in the field. This, however, does not alleviate tribunals from taking a ‘BIT by BIT’-approach to the interpretation of Most-Favoured-Nation (MFN) clauses. Furthermore, the present article argues that general principles do not support Douglas’ view that MFN clauses cannot serve as a jurisdictional basis in investment treaty arbitration. Much to the contrary, these principles, as enshrined in the jurisprudence of interNational and domestic courts, and codified by the InterNational Law Commission in its 1978 Draft Articles on Most-Favoured-Nation Clauses, support exactly the effect Douglas sets out to deny. If one understands the issue at stake as one of allocating adjudicatory authority between domestic courts and arbitral tribunals, MFN clauses have been used by interNational and domestic courts precisely to that effect. Furthermore, the clauses have direct effect in extending more favourable treatment to foreign investors without the need to claim such treatment through an arbitration proceedings. Overall, the present article argues that MFN clauses in investment treaties can have the effect of allocating adjudicatory authority and thus serve as a basis of jurisdiction of an investment treaty tribunal.
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Allocating Adjudicatory Authority: Most-Favoured-Nation Clauses as a Basis of Jurisdiction—A Reply to Zachary Douglas
Journal of International Dispute Settlement, 2011Co-Authors: Stephan W SchillAbstract:The present article comments on Zachary Douglas, The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails, published in the February 2011 issue of this Journal. It supports Douglas’ argument that arbitral tribunals should interpret investment treaties in accordance with general principles of law, and reason their decisions accordingly, in order to contribute to more consistency and coherence in the field. This, however, does not alleviate tribunals from taking a ‘BIT by BIT’-approach to the interpretation of Most-Favoured-Nation (MFN) clauses. Furthermore, the present article argues that general principles do not support Douglas’ view that MFN clauses cannot serve as a jurisdictional basis in investment treaty arbitration. Much to the contrary, these principles, as enshrined in the jurisprudence of interNational and domestic courts, and codified by the InterNational Law Commission in its 1978 Draft Articles on Most-Favoured-Nation Clauses, support exactly the effect Douglas sets out to deny. If one understands the issue at stake as one of allocating adjudicatory authority between domestic courts and arbitral tribunals, MFN clauses have been used by interNational and domestic courts precisely to that effect. Furthermore, the clauses have direct effect in extending more favourable treatment to foreign investors without the need to claim such treatment through an arbitration proceedings. Overall, the present article argues that MFN clauses in investment treaties can have the effect of allocating adjudicatory authority and thus serve as a basis of jurisdiction of an investment treaty tribunal.
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the multilateralization of interNational investment law
2009Co-Authors: Stephan W SchillAbstract:1. Introduction: globalization and interNational investment law 2. The dynamics of multilateralism and bilateralism in interNational investment relations 3. Treaty negotiation and multilateralization of interNational investment law 4. Multilateralization through Most-Favoured-Nation treatment 5. Multilateralization and corporate structuring 6. Multilateral enforcement of interNational investment law 7. Multilateralization through interpretation: producing and reproducing coherence in investment jurisprudence 8. Conclusion: multilateralization-universalization-constitutionalization.
Juha Sahi - One of the best experts on this subject based on the ideXlab platform.
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Most Favoured Nation treaty in service of trade case early trade policy relations between finland and japan and their impact on the sales networks of the finnish forest industry
Scandinavian Economic History Review, 2017Co-Authors: Juha SahiAbstract:ABSTRACTThis article scrutinises the significance of the Most-Favoured-Nation (MFN) treaty in promoting the development of commercial activity and its results in transNational trade. As cardinal agents of trade policy, governments act as ‘umpires’ in formulating and guarding the rules of interNational trade, while the ‘players’ are private corporations which conduct commercial operations in the playing field of interNational trade. Within the framework of Finno-Japanese trade relations, the players established and developed their trade networks (corporate interconnections) regardless of the umpires and their official rules, meaning the commercial treaties. Through a close examiNation of the early trade policy relations between Finland and Japan along with the formation and development of the Finnish forest industry’s sales networks into the Japanese market in the early twentieth century, this study demonstrates that there was no explicit causal connection between MFN treaties and the evolution of the Finn...
Catharine Titi - One of the best experts on this subject based on the ideXlab platform.
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Most-Favoured-Nation treatment : survival clauses and reform of interNational investment law
Journal of International Arbitration, 2016Co-Authors: Catharine TitiAbstract:In the last decade, interNational investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests, which is generally so difficult to achieve that it is often unclear whether an option constitutes 'reform' or unwanted change. Two specific treaty provisions, the Most-Favoured-Nation (MFN) treatment and survival clauses, can interfere with the reform process and become an impediment to changing the rules of the game. This is particularly true when political will is present. The MFN treatment, a guarantee of non-discrimiNation present in the quasi-totality of investment treaties, can have far-reaching ramifications for newly negotiated provisions, especially where interNational investment agreements confer pre-establishment rights and a clause expressly covers 'all matters' within a treaty. Survival clauses, a type of provision that extends the validity of an investment agreement beyond its termiNation, can delay the onset of the new options for an average of between five and twenty years after expiry of the treaty's minimum period of application. This article explores these two types of clauses and discusses their potential impact on the reform of interNational investment law.
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Most Favoured Nation treatment survival clauses and reform of interNational investment law
2015Co-Authors: Catharine TitiAbstract:In the last decade, interNational investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests generally so difficult to achieve that it is often unclear which option constitutes ‘reform’ and which unwanted change. When political will is present, and contracting parties agree on reformed options, two particular treaty provisions, the Most-Favoured-Nation treatment and survival clauses, can interfere with the process and become an impediment to changing the rules of the game. The Most-Favoured-Nation treatment, a guarantee of non-discrimiNation present in the quasi-totality of investment treaties, can have far-reaching ramifications for newly-negotiated provisions, especially where interNational investment agreements confer pre-establishment rights and the clause expressly covers ‘all matters’ within a treaty. Survival clauses, a type of provision that extends the validity of an investment agreement beyond its termiNation, can delay the onset of the new options for an average of between five and twenty years after expiry of the treaty’s minimum period of application. The present contribution explores these two types of clause from the angle of their potential impact on reform of interNational investment law.
Oentoeng Wahjoe - One of the best experts on this subject based on the ideXlab platform.
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comparison of Most Favoured Nation principal regulation in protection toward investor according to trade related investment measures trims to asean comprehensive investment agreement acia
Prosiding Ilmu Hukum; Ilmu Hukum (Gel 2 Th Akad 2015-2016); 683-691, 2016Co-Authors: Muhamad Dicky Ryaldi Suherman, Oentoeng WahjoeAbstract:Investment activity has many ground rules or principles regarding the protection standard such as the National Treatment, Most Favoured Nation Treatment, Fair and Equitable Treatment, Full Protection and Security, and Compensation for Expropriation. These principles were later adopted in a convention or treaty. In the field of investment, one of a universal multilateral treaty is the Trade Related Investment Measures (TRIMs) and the regional multilateral agreements is the ASEAN Comprehensive Investment Agreement (ACIA). In connection with the principle of Most favored Nation, TRIMs which is one of the interNational treaties that apply universally in the field of investment, the same treatment should be carried out immediately and unconditionally against original products or submitted to all members GATT. Different with one of the regional interNational agreements, ACIA, Most favored Nation principle have been set clearly enough. ACIA as an agreement that seeks to realize the ASEAN Economic Community expands the treatment of non-discrimiNation principle. The purpose of this study is to determine the rules according to the principle of Most favored Nation in TRIMs and ACIA and analyze the legal protection of Most favored Nation principle in TRIMs and ACIA for Indonesia as the host country. Research conductive in this paper was descriptive analysis using normative juridical approach through library materials or the study of principles of Most favored Nation in the Trade Related Investment Measures and the ASEAN Comprehensive Investment Agreement as the protection principle for investors and the host country. TRIMs that is not comprehensive and covers only an investment in goods, the MFN principle is not regulated in detail and clearly. Most Favoured Nation principle in TRIMs agreement only takes part on the considering. In contrast to the TRIMs, ACIA is more comprehensive and also includes investment in goods, services and intellectual property. The MFN principle in ACIA set out clearly in Article 6 paragraph (1), (2) and (3). In addition ACIA agreement also allows the reservation to the participating countries.
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perbandingan pengaturan prinsip Most Favoured Nation dalam perlindungan terhadap investor berdasarkan trade related investment measures trims dengan asean comprehensive investment agreement acia
Prosiding Ilmu Hukum; Ilmu Hukum S-1 (Gel 2 Th Akad 2015-2016); 683-691, 2016Co-Authors: Muhamad Dicky Ryaldi Suherman, Oentoeng WahjoeAbstract:Kegiatan investasi memiliki aturan-aturan dasar atau prinsip mengenai standar perlindungan yang meliputi National Treatment , Most Favoured Nation , Fair and Equitable Treatment, Full Protection and Security, serta Compensation For Expropriation. Prinsip-prinsip ini kemudian diadopsi dalam sebuah konvensi atau perjanjian internasional. Dalam bidang investasi, salah satu contoh perjanjian multilateral yang bersifat universal adalah Trade Related Investment Measures (TRIMs) dan perjanjian multilateral yang bersifat regional adalah ASEAN Comprehensive Investment Agreement (ACIA). Berkaitan dengan prinsip Most Favoured Nation , TRIMs yang mana merupakan salah satu perjanjian internasional yang berlaku secara universal mengenai bidang penanaman modal, perlakuan yang sama tersebut harus dijalankan dengan segera dan tanpa syarat (immediately and unconditionally) terhadap produk yang berasal atau yang diajukan kepada semua anggota GATT. Lain halnya dengan salah satu perjanjian internasional yang bersifat regional, ACIA, prinsip mengenai Most Favoured Nation telah diatur dengan cukup jelas. ACIA sebagai suatu perjanjian yang berupaya untuk mewujudkan ASEAN Economic Community memperluas bentuk perlakuan non-diskriminasi. Permasalahan yang dikaji bertujuan untuk mengetahui pengaturan prinsip Most Favoured Nation menurut TRIMs dan ACIA serta menganalisis perlindungan hukum dari pengaturan Most Favoured Nation di TRIMs dan ACIA bagi Indonesia sebagai host country . Penelitian ini bersifat deskriptif analitis dengan menggunakan pendekatan yuridis normatif yaitu melalui bahan pustaka atau kajian terhadap prinsip MFN dalam Trade Related Investment Measures dan ASEAN Comprehensive Investment Agreement sebagai prinsip perlindungan bagi investor dan host country. Dalam perjanjian TRIMs yang tidak begitu komprehensif dan hanya meliputi investasi dibidang barang saja, prinsip MFN tidak diatur secara rinci dan jelas. Prinsip Most Favoured Nation dalam perjanjian TRIMs hanya terdapat dalam bagian pertimbangan/ considering. ACIA yang bersifat komprehensif dan meliputi investasi dibidang barang, jasa, dan kekayaan intelektual, prinsip MFN diatur dengan jelas dalam pasal 6 ayat (1), (2), dan (3). Selain itu perjanjian ACIA juga mengizinkan adanya reservation bagi negara peserta. Investment activity has many ground rules or principles regarding the protection standard such as the National Treatment, Most Favoured Nation Treatment, Fair and Equitable Treatment, Full Protection and Security, and Compensation for Expropriation. These principles were later adopted in a convention or treaty. In the field of investment, one of a universal multilateral treaty is the Trade Related Investment Measures (TRIMs) and the regional multilateral agreements is the ASEAN Comprehensive Investment Agreement (ACIA). In connection with the principle of Most favored Nation, TRIMs which is one of the interNational treaties that apply universally in the field of investment, the same treatment should be carried out immediately and unconditionally against original products or submitted to all members GATT. Different with one of the regional interNational agreements, ACIA, Most favored Nation principle have been set clearly enough. ACIA as an agreement that seeks to realize the ASEAN Economic Community expands the treatment of non-discrimiNation principle. The purpose of this study is to determine the rules according to the principle of Most favored Nation in TRIMs and ACIA and analyze the legal protection of Most favored Nation principle in TRIMs and ACIA for Indonesia as the host country. Research conductive in this paper was descriptive analysis using normative juridical approach through library materials or the study of principles of Most favored Nation in the Trade Related Investment Measures and the ASEAN Comprehensive Investment Agreement as the protection principle for investors and the host country. TRIMs that is not comprehensive and covers only an investment in goods, the MFN principle is not regulated in detail and clearly. Most Favoured Nation principle in TRIMs agreement only takes part on the considering. In contrast to the TRIMs, ACIA is more comprehensive and also includes investment in goods, services and intellectual property. The MFN principle in ACIA set out clearly in Article 6 paragraph (1), (2) and (3). In addition ACIA agreement also allows the reservation to the participating countries.