Abstract
It has been half a century since the Washington Convention. Investor-State Arbitration (ISA) is now a hot topic in China and among its trade and investment partners. However, compared to the large volume of international investment treaties, the volume of ISA cases is still small, and doubts are still widespread at the policy-making level and among scholars. These problems, doubts and challenges may reflect the political position and legal culture of different jurisdictions. China’s ISA clause-drafting and practice is not flawless in supporting its investors in ISA or in defending its national interests as a host country. This paper aims to review the main aspects of China’s approach in drafting ISA clauses in the context of the Belt and Road Initiative. It reviews ISA clauses in Bilateral Investment Treaties (BITs) and other international investment agreements (IIAs) between China and the ‘Belt and Road’ region countries and discusses relevant legal issues and controversies. Based on a review and analysis of the issues, divergence and flexibility are identified in existing ISA clauses between China and the Belt and Road regions, although some degree of policy convergence can be found in a few most recent IIAs. It is both a challenge and an opportunity for China to learn from its previous experience of ISA clause-drafting and to integrate its treaty-making approach in the context of the Belt and Road Initiative. The author suggests that a more adaptable Model ISA clause and a more consistent approach to ISA clause drafting would benefit both China and its trade and investment partners, and evaluates the possible international negotiation arenas in which China may propose its new generation of ISA clauses.
An earlier version of the chapter was published in The Chinese Journal of Comparative Law (2017, Vol. 5, Issue 1) by Oxford University Press.
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Notes
- 1.
For example, 11 criticisms are identified in recent European research. See EFILA (2015). Criticisms include that ISA infringes the state’s sovereignty and their power to regulate; arbitrators are manipulating the ISA practice and getting benefits by favouring investors; and that ISA is used as a weapon of the investors from Western developed countries against the developing countries who would like to attract FDIs. See for example Bernasconi-Osterwalder (2005), Chung (2007), Odumosu (2007), Eberhardt et al. (2012) and Van Harten (2012). These concerns, however, are to some extent addressed by others. See for example Brower and Blanchard (2014).
- 2.
- 3.
Salomon and Friedrich (2015).
- 4.
The 9th round of China-EU BIT negotiation took place in Beijing, January 2016c, see http://english.mofcom.gov.cn/article/newsrelease/significantnews/201601/20160101234801.shtml. The 23th round of China-US BIT negotiation took place in Washington, November 2015, http://www.mofcom.gov.cn/article/ae/ai/201511/20151101195891.shtml.
- 5.
China’s role in AIIB, for example, see Wong (2016).
- 6.
The State Council of the People’s Republic of China (2015).
- 7.
Ibid.
- 8.
China-Sweden BIT, signed and in force on 29 March 1982, http://investmentpolicyhub.unctad.org/IIA/country/42/treaty/976. Years of IIAs and BITs noted in this paper is the date of conclusion, not ratification, which suits the purpose of this paper of analysing the development of China’s approach of drafting and negotiating IIAs (and the ISA clause contained in such IIAs).
- 9.
Seehttp://investmentpolicyhub.unctad.org/IIA/IiasByCountry#iiaInnerMenu. It shows 145 BITs in total and 110 in force. According to MOFCOM, the China-Congo Democratic Republic BIT (2011) is now in force.
- 10.
These include the China-Australia Free Trade Agreement (‘FTA’) (2015), the China-Korea FTA (2015), the China-Costa Rica FTA (2010), the China-Peru FTA (2009), the China-New Zealand FTA (2008), the China-Japan-Korea Trilateral Investment Agreement (2012), the ASEAN-China Investment Agreement (2009) and the China-Pakistan FTA (2006).
- 11.
China Mainland and Hong Kong Closer Economic Partnership Arrangement (2017). Its Article 19 provides a unique dispute settlement scheme for investment disputes between investor and governments between Mainland China and Hong Kong. However, it does not refer to the investor-state arbitration, but only refer to administrative methods, mediation and judicial procedure, so this Arrangement will not be covered in the statistic studies in relation to the ISA clauses in this chapter.
- 12.
A list of China’s BITs and other investment-related instruments, see http://investmentpolicyhub.unctad.org/IIA/CountryBits/42#iiaInnerMenu.
- 13.
- 14.
Some scholars further divided the first phase to two: first with developed countries (1982–1990) and then with developing countries (1991–1998). For example, Berger (2015), p. 845.
- 15.
Further discussed in Section III.
- 16.
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958); The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Washington, 1965). China signed the agreement to join in the Washington Convention on 09 Feb 1990 and such commitment entered into force on 06 Feb 1993. China’s commitment under the New York Convention is further discussed in Section VI.
- 17.
Berger (2013).
- 18.
National Development and Reform Commission, Ministry of Foreign Affairs, and Ministry of Commerce of the People’s Republic of China (2015).
- 19.
A list of these instruments, see Annex A. There are some countries in the middle of both Europe and Asia and the categorisation of these countries is also listed in Annex A. IIAs reached between Mainland China and Hong Kong or Mainland China and Macau, as well as IIAs reached by Hong Kong and Macau with other jurisdictions are excluded from this research.
- 20.
See http://unctad.org/en/Pages/DIAE/World%20Investment%20Report/Annex-Tables.aspx, also UNCTAD (2015).
- 21.
- 22.
MOFCOM, Investment and Cooperation with the ‘Belt and Road’ Countries in 2016a, http://hzs.mofcom.gov.cn/article/date/201701/20170102504429.shtml.
- 23.
Ibid.
- 24.
MOFCOM (2016b).
- 25.
A summary of the worldwide investment treaty making, see Kinnear (2015), pp. 10–11.
- 26.
Berger (2013), p. 850.
- 27.
Chi and Wang 2015, pp. 869–898, 871–73, 898.
- 28.
See ICSID, The ICSID Caseload Statistics, Issue 2017-1, available at: https://icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats%202017-1%20(English)%20Final.pdf. The number includes the cases registered under the ICSID Convention and Additional Facility Rules, and excludes the non-ICSID cases administrated by ICSID.
- 29.
See ICISD’s website, https://icsid.worldbank.org/en/Pages/cases/searchcases.aspx.
- 30.
China is an observer but not yet a member of the International Energy Charter (2015). There are however, some investment agreements made between Chinese investors and foreign states/stated owned companies. See for example, the two claims brought by Hong Kong investors towards Tanzania: ICSID Case No. ARB/10/20 and ICSID Case No. ARB/15/41.
- 31.
Tza Yap Shum v the Republic of Peru, ICSID Case No. ARB/07/6 (relying on China-Peru BIT); Ping An Life Insurance Company of China Ltd. and Ping An Insurance (Group) Company of China Ltd. v Kingdom of Belgium, ICSID Case No. ARB/12/29 (relying on China-Belgium and Luxembourg BIT); Beijing Construction Group Co Ltd. v Republic of Yemen, ICSID Case No ARB/14/30 (relying on the China-Yemen BIT). The other two claims brought by Hong Kong investors relying on investment contracts are not discussed here.
- 32.
Ekran Berhad v People’s Republic of China, ICSID Case No. ARB/11/15 (relying on China-Malaysia BIT); and Ansung Housing Co Ltd. v People’s Republic of China, ICSID Case No. ARB/14/30 (relying on China-Korea BIT); Hela Schwarz GmbH v People’s Republic of China, ICSID Case No.ARB/17/19 (relying on China-Germany BIT 2003).
- 33.
China Heilongjiang International Economic & Technical Cooperative Corp, Beijing Shougang Mining Investment Company Ltd. and Qinhuangdaoshi Qin Long International Industrial Co Ltd. v Mongolia (relying on China-Mongolia BIT), UNCITRAL, PCA, https://pcacases.com/web/view/48, Sanum Investments Ltd. v Lao People’s Democratic Republic (relying on China-Laos BIT), UNCITRAL, PCA Case No.2013-13.
- 34.
The calculation was made on the basis of the statistics on 24 October 2017. The number of cases and claims are collected from the ICSID website. When there are claimants from different jurisdictions, it is recorded for each different jurisdiction. Turkey is regarded as an Asian country in this research, although the uniqueness of its active ISA practices should be noted.
- 35.
Salomon and Friedrich (2015), p. 840.
- 36.
Nottage and Weeramantry (2012), p. 31.
- 37.
See also Salomon and Friedrich (2015), pp. 835–838.
- 38.
For example, the China-France BIT (1984).
- 39.
For example, the China-Romania BIT (1983) and the China-Thailand BIT (1985).
- 40.
For example, China-Germany BIT (2003); China-India BIT (2006).
- 41.
Article 4, 5, 7–10 of the ASEAN-China Investment Agreement, signed at 15 August 2009, in effect at 1 January 2010.
- 42.
Among the other 9, 8 are terminated and 1 is signed but not in force.
- 43.
All the other 13 were signed but not enter in force yet.
- 44.
A detailed list of these IIAs and the types of their ISA clauses, see Annex A. The texts of these IIAs, see www.investmentpolichub.unctad.org and www.lawinfochina.com. There are four BITs with no ISA clauses and 5 IIAs whose texts are not available.
- 45.
For example, the China-Turkmenistan BIT (1992) and China-Romania BIT (1994) require further consent for ISA.
- 46.
European Media Ventures SA v Czech Republic, UNCITRAL Award on Jurisdiction, not published.
- 47.
The English High Court, Czech Republic v European Media Ventures SA [2007] EWHC 2851.
- 48.
SCC Case No. V070/2005, Award of October 2007.
- 49.
SCC Case No. V080/2004, Award of 21 April 2006.
- 50.
ICSID Case No. ARB/07/6, Award of 7 July 2011.
- 51.
Sanum Investments Ltd. v Government of Lao People’s Democratic Republic, UNCITRAL, PCA Case No.2013–13; Sanum Investments Ltd. v Government of Lao People’s Democratic Republic [2016] SGCA 157.
- 52.
Sanum Investments Ltd. v Government of Lao People’s Democratic Republic [2015] SGHC 15.
- 53.
[2015] SGHC 15.
- 54.
- 55.
Notification of 7 January 1993.
- 56.
Gallagher and Shan (2009), p. 331.
- 57.
See China-Korea BIT (2007), arts 9(1) and 9(5); China-Japan-Korea Trilateral Investment Agreement, arts. 15(1) and 15(2)(b) referring to arts 9(1)(b) and 20; China-Korea FTA (2015), art 12.12.
- 58.
China-Chad BIT (2010) Art 12.2 and China-Uzbekistan BIT (2011) Art 12.2.
- 59.
ASEAN-China IA (2009) Art14.1.
- 60.
China-Australia FTA, Art 12.2(1) and (2).
- 61.
See for example, Gallagher (2016), pp. 88, 90–91.
- 62.
The rest 10 IIAs are not available, not do not include an ISA clause, or do not specify the mechanism of ISA.
- 63.
This number includes the China-Sweden BIT 1982, the ISA clause of which was inserted by a protocol in 2004.
- 64.
This include: China-Armenia BIT (1992), China-Kazakhstan BIT (1992), China-Kyrgyzstan BIT (1992), China-Ukraine BIT (1992), China-Uzbekistan BIT (1992), China-Tajikistan BIT (1993). Most of BITs reached in 1992 and 1993 agree that the tribunal should refer to ICSID Rules or UNCITRAL Rules in setting their own rules, and refer to ICSID as an appointing party.
- 65.
Examples of this type of clause could be found in Gallagher and Shan (2009), 356, fn 223.
- 66.
For example, China-France BIT (1984).
- 67.
For example, China-Kazakhstan BIT (1992), China-Iceland BIT (1994) and China-Libya BIT (2010).
- 68.
For example, China-Italy BIT (1985), China-South Africa BIT (1997) and China-Mali BIT (2009).
- 69.
China-Bahrain BIT (1999), China-Botswana BIT (2000), China-Congo BIT (2000), China-Cyprus BIT (2001), China-Kenya BIT (2001), China-Mozambique BIT (2001), China-Myanmar BIT (2001), China-Netherlands BIT (2001), China-Sierra Leone BIT (2001), China-Cote d’Ivoire BIT (2002), China-Djibouti BIT (2003), China-Finland BIT (2004), China-Korea DPR BIT (2005).
- 70.
China-France BIT (1984), China-Poland BIT (1988), China-Pakistan BIT (1989), China-Turkey BIT (1990), China-Syria BIT (1996).
- 71.
China-Korea BIT (2007), Japan-Korea-China TIA (2012) and China-Korea FTA (2015).
- 72.
China-Netherlands BIT (2001), Protocol Ad Article 10.
- 73.
Gallagher and Shan (2009), p. 338.
- 74.
For example, the China-Mongolia BIT (1991), Art 8.3.
- 75.
For example, the China-Bosnia and Herzegovina BIT (2002), Art 8.2.
- 76.
China-Latvia BIT (2001), China-Netherlands BIT (2001), China-Germany BIT (2003), China-Sweden BIT (2004 Protocol), China-Czech BIT (2005), ASEAN-China IA (2009), China-Switzerland BIT (2010).
- 77.
Such a clause requires a written waiver to be signed by the party before an ISA claim could be made. See Gallagher and Shan (2009), pp. 338–339.
- 78.
Gallagher and Shan (2009), pp. 334, 367.
- 79.
Particularly, since the China-Hungary BIT (1991) till 1999, most of the BITs provides that clause.
- 80.
The SPC’s Notice in Relation to the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, of which China Becomes a Party, Fa Jing [1987] No.5, 10 April 1987.
- 81.
It is provided by the Art 283 of Chinese Civil Procedure Law.
- 82.
Although in the practices in relation to international commercial arbitration, China now recognises the enforceability of a foreign award made by an ad hoc tribunal (see for example, the SPC’s Notice in Relation to the Enforcement of Hong Kong Arbitration Award in Mainland China, Fa [2009] No.45), it is doubtful whether such practice would extend to the recognition and enforcement of an ISA award.
- 83.
As discussed around above n 79.
- 84.
See Art 54(3) of the ICSID Convention. See also Baldwin et al. (2006), p. 5.
- 85.
Xiao (2011), p. 100.
- 86.
The ten countries of ASEAN, Japan, Korea and Pakistan.
- 87.
See the terminated BITs listed in the Annex.
- 88.
For example, the date referred to in China-Korea BIT 1992 for investment in China is the date of foundation of the People’s Republic of China.
- 89.
Mode 1: China-Sweden BIT (1982), China-Mongolia BIT (1991), China-Romania BIT (1994), China-Serbia BIT (1995), China-Lebanon BIT (1996), China-South Africa BIT (1997), China-Jordan BIT (2001), China-Myanmar BIT (2001), China-Bosnia and Herzegovina BIT (2002), China-Latvia BIT (2004), China-Tunisia BIT (2004), China-Uganda BIT (2004), China-Equatorial Guinea BIT (2005), China-Madagascar BIT (2005), China-Namibia BIT (2005), China-Portugal BIT (2005), China-Russia BIT (2006), China-Korea BIT (2007), China-Seychelles BIT (2007), China-Mali BIT (2009), China-Malta BIT (2009), China-Chad BIT (2010), China-Libya BIT (2010), China-Uzbekistan BIT (2011).
Mode 2: China-Ethiopia BIT (1998), China-Czech BIT (2005), China-Japan-Korea TIA (2012).
Mode 3: China-Netherlands BIT (2001), China-Germany BIT (2003), China-Finland (2004), China-Belgium and Luxembourg BIT (2005), China-Spain BIT (2005), China-France BIT (2007).
- 90.
Mode 1: Korea BIT (2007), Portugal (2005), Russia (2006), Uzbekistan (2011). Mode 2: Czech Republic (2005). Mode 3: See above n 89.
- 91.
Ping An Life Insurance Company of China Ltd. and Ping An Insurance (Group) Company of China Ltd. v Kingdom of Belgium, ICSID Case No. ARB/12/29.
- 92.
Art 8.1 of the China-Belgium-Luxembourg BIT (2005): “When a legal dispute arises between an investor of one Contracting Party and the other Contracting Party, either party to the dispute shall notify the other party to the dispute in writing.”
- 93.
Ren (2016).
- 94.
For example, the transparency of investor-state arbitration proceedings, see the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, effective on 1 April 2014; United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the “Mauritius Convention”).
- 95.
As provided by an empirical study, emergence of actual ISA cases will negatively influence the country’s ability and reputation to attract further FDIs. Aisbett et al. (2016).
- 96.
For example, the influence of NAFTA countries such as Canada and Mexico might be the cause of China’s most recent version of IIA. See Berger (2013).
- 97.
See Art 9.12 of the China-Australia Free Trade Agreement.
- 98.
The Xinhua News Agency (2016).
- 99.
For example, the Joint Declaration of the Government of the People’s Republic of China and the Government of Republic of Uzbekistan (2016), the Joint Declaration of the Government of the People’s Republic of China and the Government of the Republic of Belarus regarding the Establishment of a Comprehensive Strategic Partnership with the Understanding of Mutual Trust and Win-win Cooperation (2016).
- 100.
- 101.
Trans-Pacific Partnership and the US’s initiative in leading the treaty-making in Asia-Pacific, see: https://ustr.gov/tpp/overview-of-the-TPP, Executive Office of the President (2017).
- 102.
The EU-Canada Comprehensive Economic and Trade Agreement, http://ec.europa.eu/trade/policy/in-focus/ceta/, The Transatlantic Trade and Investment Partnership, http://ec.europa.eu/trade/policy/in-focus/ttip/, European Commission (2017a, b).
- 103.
ASEAN’s framework of and progresses in cooperation under the Region Comprehensive Economic Partnership, http://asean.org/?static_post=asean-framework-for-regional-comprehensive-economic-partnership and http://asean.org/storage/2016/09/56-RCEP_Joint-Leaders-Statement_8-September-2016.pdf, which affirms the possibility of a potential regional agreement on this regard Association of South East Asian Nations (2012, 2016).
- 104.
Berger (2013).
- 105.
Kelly (2017).
- 106.
Chapter 9, Section B of the Trans-Pacific Partnership Agreement (TPP).
- 107.
The concerns regarding the high level ISA practice in the TPP drafts and its impacts to China, see for example, Gong (2013).
- 108.
Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No.AA 227. The award made on 28 July 2014 awarded the major shareholders over $50 billion damages, but such an award was quashed by the District Court of the Hague on the ground of lack of jurisdiction.
- 109.
Bai (2012).
- 110.
Shan et al. (2016), pp. 43–45.
- 111.
Ibid.
- 112.
It is generally considered that China-backed RCEP is competing with the US-promoted TPP in controlling the trade rules in the Asia-Pacific Region. See for example, Gantz (2016), p. 57. Also, achievements made by the China Africa Economic and Trade Cooperation, see Information Office of the State Council (2013).
- 113.
The Shanghai Cooperation Organisation (SCO) (2017). It is recognised that the creation of new models of economic cooperation among members in the context of the ‘Belt and Road’ Initiative should be one of the focuses of the member countries. See the Joint Declaration of the Councils of State Government Officials of SCO (2016).
- 114.
Xinhua News Agency (2015).
- 115.
For example, Kelly (2017).
- 116.
For example, the countries might have different opinion regarding China’s ‘Belt and Road’ collaboration; while New Zealand becomes the first Western country to reach the agreement with China regarding the ‘Belt and Road’ collaboration, Australia rejected China’s proposal on ‘Belt and Road’. See Morning Report (2017) and Smyth (2017).
- 117.
Kaufmann-Kohler and Potesta (2016).
- 118.
United Nations Commission on International Trade Law (2014), its status, see: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention_status.html, retrieved on 10 November 2017.
- 119.
Ibid.
- 120.
Art.9.23 of the China-Australia FTA (2015).
- 121.
- 122.
Art 11 of the CIETAC Investment Arbitration Rules (2017).
- 123.
China Mainland and Hong Kong Closer Economic Partnership Arrangement (2017), Article 19.
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Zhang, S. (2018). Developing China’s Investor-State Arbitration Clause. In: Shan, W., Nuotio, K., Zhang, K. (eds) Normative Readings of the Belt and Road Initiative. Springer, Cham. https://doi.org/10.1007/978-3-319-78018-4_8
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