Chinese Investment Treaties

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Local Governments ◽  
International Investment ◽  
Foreign Economic Policy ◽  
Continuous Growth ◽  
Chinese Investment ◽  
Investment Treaty ◽  
Dramatic Rise ◽  
Investment Treaties

China's success in attracting foreign direct investment (FDI) in the last decade is undisputed and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. This book is a comprehensive commentary on Chinese BITs. Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China, and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book reviews and analyzes China's approach to foreign investment. It considers the current role of investment treaties in China's foreign economic policy, analyzes and interprets the key provisions of the BITs, and discusses the future agenda of China's investment program. It looks at how this investment regime interconnects with the domestic system and considers the implications for a foreign investor in China.

scholarly journals Putting the MFN Genie Back in the Bottle

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 60-63
Author(s):  
Michael Waibel
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
Most Favored Nation ◽  
Trade Regime ◽  
Investment Treaty ◽  
Limited Role ◽  
Investment Treaties ◽  
Text Context

This essay underscores the importance of background understandings in general international law for interpreting brief, open-ended clauses such as most favored nation (MFN) clauses. Contrary to Simon Batifort and J. Benton Heath's claim, I suggest that often interpreters of MFN clauses cannot limit themselves to the text, context, and preparatory materials of a specific MFN clause. A common international negotiating technique, including for investment treaties, is to rely on the general background understanding of what a clause typically means in international law—its default meaning. I also argue that MFN clauses have played a surprisingly limited role in the international investment regime to date. In the main, they have functioned as a stepping stone for procedural and substantive guarantees found in third-party investment treaties. This use, and the limited role of MFN clauses in investment treaty awards, stands in sharp contrast to MFN clauses in the trade regime.

scholarly journals The Role of Democratic Governance and Indirect Expropriation in International Investment Treaty Violations

2020 ◽  
Author(s):  
Jeffrey Ziegler ◽  
David Carlson
Keyword(s):  
Public Support ◽  
International Investment ◽  
Democratic Governance ◽  
Data Set ◽  
Business Interests ◽  
Investment Treaty ◽  
International Obligations ◽  
Investment Treaties ◽  
Investment Agreements

Democracies are thought to violate treaties less frequently than non-democracies, yet democracies violate bilateral investment treaties (BITs) just as often as non-democracies. Though democratic governments may intend to meet their international obligations, and though democratic institutions provide greater political constraints to encourage compliance, investment agreements may conflict with the goal of maintaining domestic public support. Specifically, we argue that credible elections create strong incentives for governments to side with domestic voters over foreign business interests, and to pass legislation that violates investment agreements. We use a data set of BIT violation complaints that better captures potential indirect expropriation to confirm prior findings that show a difference in violations by regime type. Since policies are not passed immediately and companies do not file arbitration complaints instantly when a potential violation occurs, democratic governments are only more likely to be sued as their time in office increases. The results suggest that the ability of voters to sanction leaders is an important mechanism that incentivizes governments to pass legislation that potentially violates investment treaties through indirect expropriation.

Expropriation in Transition: Evolving Chinese Investment Treaty Practices in Local and Global Contexts

2015 ◽  
Vol 28 (3) ◽  
pp. 579-604 ◽  
Author(s):  
SHEN WEI
Keyword(s):  
Trade Agreement ◽  
International Investment ◽  
International Investment Law ◽  
Chinese Investment ◽  
Cultural Concepts ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Role Of The State ◽  
The Republic

AbstractThe doctrine and case law on expropriation in international investment law is an unsettled area due to a variety of factors such as the diversity of interests between capital importing and exporting states, the divergence in legal, economic, and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active ‘treaty-maker’ in the universe of international investment arbitration, evidenced by its nearly 130 bilateral investment treaties (BITs), the notion of expropriation in these BITs is in a state of flux. This article scrutinizes the expropriation clauses in China's BITs, in particular, the Peru–China BIT and the Peru–China free trade agreement, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This article attempts, in a comparative context, to understand the underlying rationale for China's evolving stance on expropriation.

1 International Investment in China and the Bit Programme

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Legal System ◽  
Foreign Investment ◽  
Legal Status ◽  
Historical Review ◽  
International Investment ◽  
Chinese Investment ◽  
Investment Treaties ◽  
Investment In China ◽  
Changing Role

This chapter examines the changing role of China in international investment, including a historical review followed by a discussion of the main forms of foreign investment in China. It then analyzes aspects of the Chinese investment treaties, focusing on the evolution and features of the BIT programme and the legal status of investment treaties within the Chinese legal system. The chapter ends with a brief introduction to the book.

Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making

2015 ◽  
Vol 16 (5-6) ◽  
pp. 843-868 ◽  
Author(s):  
Axel Berger
Keyword(s):  
Policy Making ◽  
Significant Contribution ◽  
International Investment ◽  
Investment Policy ◽  
Recent Period ◽  
Investment Treaty ◽  
Key Stakeholders ◽  
Recent Approach ◽  
Investment Treaties ◽  
Rule Making

China is becoming one of the key stakeholders in the international investment regime. It is, however, still unclear what role China can play in the ongoing reform of the international investment regime. Starting from this overall focus, this article analyses the most recent period of China’s international investment policy-making. Mapping the contents of investment treaties signed since 2008 it argues that China undertook a partial ‘NAFTA-ization’. Whilst China has adopted a number of clauses invented by the NAFTA countries, it introduced these clauses in an incoherent fashion. Looking at the drivers of this peculiar policy, this article argues that China’s investment treaty-making practice is largely inspired by its partner countries. As a result of this particular negotiation policy, Beijing’s approach to international investment rule-making is inconsistent. This belies the argument that China can make a significant contribution to reforming the international investment regime.

scholarly journals RECALIBRATING THE INTERNATIONAL INVESTMENT REGIME THROUGH NARROWED JURISDICTION

2020 ◽  
Vol 69 (2) ◽  
pp. 301-334
Author(s):  
Javier García Olmedo
Keyword(s):  
International Investment ◽  
The Novel ◽  
Investment Treaty ◽  
Planning Approach ◽  
Investment Treaties ◽  
Investor Protections ◽  
Legitimacy Crisis ◽  
Personal Jurisdiction ◽  
Dutch Model

AbstractThe legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.

15 Investment Treaty Dispute Settlement

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
State Governments ◽  
Rule Based ◽  
Host State ◽  
Rule Based System ◽  
Investment Treaty ◽  
Diplomatic Protection ◽  
Domestic Courts ◽  
Investment Treaties

This chapter focuses on investment treaty dispute settlement, examining the nature of conflicts between investors and states and the various means provided by treaties to resolve them. In general, investor–state disputes governed by treaties occur because a host state has taken a ‘measure’ that allegedly violates that state's treaty commitments on the treatment it has promised to accord to investments protected by that treaty. Before the advent of investment treaties, investors basically had three methods to seek resolution of their disputes with host states: (a) direct negotiation with host state governments; (b) domestic courts in the host country; and (c) diplomatic protection by their home states. In order to establish a stable, rule-based system for international investment, treaties provide means to resolve disputes about the interpretation and application of treaty provisions. Most investment treaties provide four separate dispute settlement methods: (1) consultations and negotiations between contracting states; (2) arbitration between contracting states; (3) consultations and negotiations between covered investors and host governments; and (4) investor–state arbitration.

scholarly journals Constitutionality of the Colombia-France Bilateral Investment Treaty

2020 ◽  
Vol 114 (3) ◽  
pp. 471-478
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
International Investment ◽  
Constitutional Court ◽  
Investment Treaty ◽  
Adverse Impacts ◽  
International Investment Agreements ◽  
The Government ◽  
Benefits And Costs ◽  
Investment Agreements ◽  
Practical Implications

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kostadinova Milanka
Keyword(s):  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
International Chamber Of Commerce ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

Canadian Investment Treaties with African Countries: What Do They Tell Us About Investment Treaty Making in Africa?

2017 ◽  
Vol 18 (3) ◽  
pp. 556-584 ◽  
Author(s):  
J. Anthony VanDuzer
Keyword(s):  
Sustainable Development ◽  
International Investment ◽  
Economic Power ◽  
African Countries ◽  
Investment Policies ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Work Done ◽  
Made In ◽  
Do So

Between 2013 and 2015, Canada signed nine bilateral investment treaties (BITs) with countries in Africa. Canada was remarkably successful in imposing its model investment treaty on its African partners. Canada’s success might be considered surprising. Investor-state arbitration cases have shown the strong binding character of BITs and the corresponding need for host states to ensure that treaties reflect their distinctive priorities. In seeking to do so, African countries could have looked to African regional initiatives for expressions of made in African investment policies. African negotiators could have benefited from the substantial work done by UNCTAD and others to provide new forms of international investment rules that make BITS more supportive of sustainable development. Despite stronger incentives for African countries to assert themselves in BIT negotiations and resources for them to draw on, however, Canada’s recent BITs suggest that political and economic power continue to define the outcome of negotiations.

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