特许协议争议的条约管辖与合同管辖：冲突、典型案例及解决

传统理论认为特许合同的争议应由当事人指定的管辖机构，主要是东道国法院管辖。然而基于投资条约建立的国际仲裁庭也可因为投资仲裁的无默契性特点，合同请求与条约请求的划分以及条约中的保护伞条款主张对特许合同争议的管辖，由此引起特许协议争议的合同管辖与条约管辖之间积极的管辖冲突。在条约中限制仲裁庭的管辖权，要求投资者放弃替代管辖权以及适用司法礼让的原则可以较好地解决这种冲突。

Treaty and Contract Jurisdiction Concerning Disputes about Concession Agreement: Conflicts, Typical Cases and Solution

Traditionally it is believed that disputes the jurisdiction institution designated by the party arising from concession agreement should be settled by itself, mainly by the host country＇ s court. But in the international arbitration tribunals, conflicts over the contract and treaty jurisdiction concerning concession agreement dispute may result from the investment arbitration without privity, and the division between the contract and treaty request, as well as the assertion of umbrella clauses. Limitations to the right of juris- diction in the treaty can find better solutions to this conflict by asking investors to give up their alternative right of jurisdiction and by adopting the theory of the judicial comity.