The “Noodle Bowl Effect” of Investment Treaties in Asia: The Phenomenon, the Problems, the Practical Solutions
Publication in refereed journal


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摘要The ‘noodle bowl effect’ of international investment agreements (IIAs) is a serious challenge posed to the coherence and legitimacy of international investment law in the Asian region where there is the highest density of IIAs in the world. While trade disputes are state-to-state, an investment dispute involves investors who try to protect their investment using IIAs, such as the well-known case of Philip Morris, which launched proceedings against Australia via an Asian subsidiary using the Hong Kong–Australia investment treaty. Furthermore, each IIA can allow the importing of ‘better’ provisions from other IIAs using its most favoured nation (MFN) clause, which significantly complicates the interpretation of IIAs. There are three ways to mitigate the problem. First, the scope of MFNs should be carefully drafted to limit the ‘mobility’ of provisions, eg MFN treatment does not apply to investor–state dispute provisions or older IIAs. Second, while investors are mobile and tend to relocate their base to seek convenient IIA protection, there should be some discipline on such relocations. Just to fight against the policy in question, IIAs should not create an incentive for investment relocation. Third, the ‘mobility of countries’ should be enhanced by allowing them to join existing IIAs favourable to their investors and investments.
著者Julien Chaisse, Shintaro Hamanaka
期刊名稱ICSID Review
出版年份2018
月份7
卷號33
期次2
頁次501 - 524
國際標準期刊號0258-3690
電子國際標準期刊號2049-1999
語言英式英語

上次更新時間 2021-25-07 於 00:36