Abstract
The rapid development of China’s economy not only has upgraded its international economic rank but also has accelerated its pace of outward investment. Meanwhile, China and several dozens of other developing countries are stuck in a disadvantageous status caused by consequent remarks, such as that “China is no longer a developing country” and that “the perspective of South–North Contradictions is already outdated and should be abandoned during the process of concluding BITs and establishing international economic rules in general.” However, the rationale and accuracy of these remarks as well as the exact meaning hidden behind all remain open to question. This article, from the source and stream of South–North Contradictions and modern BITs, focusing on the typical example of two core provisions selected from the newly concluded 2012 Sino-Canada BIT, endeavors to demonstrate that the “perspective on South–North Contradictions” cannot and should not be abandoned during the process of BIT negotiations and establishing international economic rules in general.
This article, co-authored with Ph.D. candidate Ms. E-Nuo Gu, was first published in The Journal of World Investment & Trade, Vol. 14, No. 2, 2013. Thanks are due to Mr. Fan Yang for his kind help in preparing the English version of this article. Thanks are also due to Professor Xiuli Han (professor of International Economic Law Institute, Xiamen University), Ms. Qingling Li and Mr. Fan Yang (Ph.D. candidates of Law School, Xiamen University) for their kind help in providing some materials and some comments.
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Notes
- 1.
This term, which combines together “China” and “America,” is first created by Niall Ferguson, professor of Business School of Harvard University, in an article under the title of “Not two countries, but one: Chimerica,” published in Sunday Telegraph on 4 March 2007. He emphasized the close relationship between the United States and China and claimed that both countries have become more than ever interdependent and complementary to each other. He explained: “Think of the United States and the People’s Republic not as two countries, but as one: Chimerica. …Chimerica has accounted for around 60 per cent of global growth in the past five years. Their relationship isn’t necessarily unbalanced; more like symbiotic. East Chimericans are savers; West Chimericans are spenders. East Chimericans do manufactures; West Chimericans do services.… As in all good marriages, the differences between the two halves of Chimerica are complementary.” At the end, Professor Ferguson directly described their relationship as “Sino-American symbiosis.” Their relationship is not necessarily unbalanced; more like symbiotic. See http://blog.sina.com.cn/s/blog_5d09a1e10100bdoz.html
- 2.
“G2” refers to the notion of a Sino-American group replacing the old G8, i.e., Group of 8, in order to work together on solving world economic problems. Fred Bergsten, director of the Peterson International Economic Institute of Washington, published in Foreign Affairs an article entitled “A Partnership of Equals: How Washington Should Respond to China’s Economic Challenge?” proposing to form G2 and urge America to share the leadership of world economy with China, so that China could replace Europe to some extent. This idea had attracted wide attention from both the academic field and the political circles, for it was spread out at the time when the fourth US–China Strategic Economic Dialogue was held in Annapolis, Maryland.
The article is available at http://www.foreignaffairs.com/articles/64448/c-fred-bergsten/a-partnership-of-equals
- 3.
See Jin Chanrong, “Startling Inside Story: Co-governing World With America Might Lead China Towards Disorder,” available at http://www.junshinews.com/article/201203/8045_3.html (in Chinese).
Jin opines that both the terms “Chimerica” and “G2” are proposed by economists based on facts of economic developments, mainly focusing on the economic status and their respective responsibility to the world economy of these two countries. This makes certain sense from an economic perspective. However, these two terms are ascended to the political level by several American scholars and strategists, who specially propose an institutional structure of leadership by China and America. This proposal is politically perilous and impractical.
- 4.
See World Investment Report 2012, available at http://www.unctad-docs.org/UNCTAD-WIR2012-Overview-cn.pdf, p. xvi.
- 5.
- 6.
See statistics by World Bank, available at http://data.worldbank.org.cn/indicator/NY.GNP.PCAP.CD
- 7.
HDI is an index to judge peoples’ quality of life, educational level, average life expectancy, and other indicators from their average income.
- 8.
See UNDP, 2011 Human Development Report, p. 126, available at http://www.undp.org/content/undp/en/home/librarypage/hdr/human_developmentreport2011/
- 9.
See the speech of Wen Jiabao addressed in Harvard University: Casting Sights to China, at http://www.chinanews.com.cn/n/2003-12-12/26/380015.html
- 10.
See Wen Jiabao, To Recognize a Real China – Speech in General Debate of the 65th United Nations Assembly, at http://politics.people.com.cn/GB/1024/12800629.html, 24 September, 2010.
- 11.
South Center is an intergovernmental organization established by various developing countries including China and is deemed as a common think tank servicing these countries. The points emphasized by Martin Khor as mentioned in the above text can well be regarded as penetrating judgments reaching the essence of contemporary South–North Conflict issues. His specific comments are available at http://www.twnside.org.sg/title2/gtrends/gtrends364.htm
- 12.
“South–North Contradiction” or “South–North Problem” was first proposed during a speech in 1959 by Sir Oliver Franks and then president of Lloyds Bank. That speech was then, under the title of The New International Balance: Challenge to the Western World, published in Saturday Review on 16 January 1960. At that time, most developed countries, i.e., the former colonialism suzerains and imperialism countries, whose economic and social developmental level were relatively much higher, were located on the northern area of the Earth. On the contrary, most of the developing countries, i.e., the former colonies and semicolonies, were located in tropical and subtropical areas on both sides of the equator, so that they were to the south from the perspective of those developed countries. It is from this sense that the contradiction or problem in between the developed group and the developing group was referred to as the “South–North Contradiction” or “ South–North Problem.” The General Assembly of the United Nations summoned the 6th special meeting in April 1974 and the 29th session in December of that same year. Both assemblies specially focused on issues of the basic principles and specific arrangements for opposition against the exploitation and deprivation of colonialism as well as for reformation of the old international economic order. Fundamental documents as Declaration on the Establishment of a New International Economic Order and Charter of Economic Rights and Duties of States were successively passed, and the “South–North Contradiction” thus has become commonly believed to be the main contradiction affecting the contemporary world’s development.
- 13.
See the speech of Wen Jiabao addressed in Harvard University: Casting Sights to China, at http://www.chinanews.com.cn/n/2003-12-12/26/380015.html. See also Wen Jiabao, To Recognize a Real China – Speech in General Debate of the 65th United Nations Assembly, at http://politics.people.com.cn/GB/1024/12800629.html, 24 September, 2010.
- 14.
According to 2011 Statistical Bulletin of China’s Outward Foreign Direct Investment published by Ministry of Commerce, National Bureau of Statistics, and State Administration of Foreign Exchange, the total amount of China’s outward FDI had accumulated to $42.478 billion as to the end of 2011, ranking the 13th around the world. Available at http://www.gov.cn/gzdt/2012-08/30/content_2213920.htm. On the other hand, according to p. 6 of Statistics on FDI in China published by Ministry of Commerce, the total amount of FDI in China reached to $123.184 billion as to the end of 2011. Thus, by comparison, China’s potential debts were some three times higher than its potential credits. For detailed analysis on this matter, see An CHEN [1]; see also Distinguishing Two Types of Countries and Properly Granting Differential Reciprocity Treatment: Re-comments on the Four Safeguards in China–Foreign BITs Not to Be Hastily and Completely Dismantled, The Journal of World Investment & Trade, Vol. 8, No. 6, 2007.
- 15.
See a series of articles organized by UNCTAD on the promotion of development by the international investment policy, available at http://unctad.org/ch/docs/iteiit20073_ch.pdf
- 16.
Ever since the end of World War II (hereinafter WWII), struggles between powerful, developed states and weak, developing states have been permeating the whole developing process of global economy. The former endeavors to maintain the established IEO and IEL to protect and amplify their vested economic interests, while the latter endeavors to renew the established IEO and IEL to acquire a level playing field and proper economic rights and interests. For over 60 years, these struggles usually temporarily paused with the two sides’ coming to a compromise, after which new conflicts would arise from new contradictions, and so on and so forth. It seems that the historical course could be generalized as the spiral “6C Track” or the “6C Rule”: Contradiction → Conflict → Consultation → Compromise → Cooperation → Coordination → New Contradiction. But each new circle is on a spiral upper level rather than on an exactly repetitive old one, thus pushing IEO and its relating IEL (including BITs) towards a fairer level at a higher development stage. Consequently, the economic status and rights of the international weak groups are able to acquire corresponding improvements and safeguards. See An CHEN [2].
- 17.
See Interpretation of China-Canada Investment Protection Agreement by an Official from the Department of Treaty and Law of MOFCOM. Available at http://english.mofcom.gov.cn/aarticle/policyrelease/Cocoon/201209/20120908359187.html
- 18.
Including but not limited to 2004 Canada Model BIT and the newly concluded 2012 Sino-Canada BIT. The reason to choose 2004 Canada Model BIT and recently signed 2012 Sino-Canada BIT as references can be explained as follows: Firstly, there is a saying that “A drop of water can reflect the spectrum of the sun”; the main clauses in 2004 Canada Model BIT provide a typical example of most developed countries’ Model BITs all over the world. Secondly, 2004 Canada Model BIT and 2004 US Model BIT are regarded in the same light and have a common origin, i.e., the 1994 NAFTA. Thirdly, some provisions in both 2004 Canada Model BIT and 2004 US Model BIT have much in common with MAI drafted by OECD (which is mainly consisted of developed countries). In contrast, the recently signed 2012 Sino-Canada BIT is a hard-won result through 22 rounds of formal negotiations during the past 18 years and can serve as a typical example of a long negotiation process between developed countries and developing countries. See An CHEN [1]; and An CHEN [3]. Both English and Chinese versions of the above two articles are available in An CHEN on International Economic Law (Five Volumes), Fudan University Press, 2008, pp. 1079–1146 and pp. 1853–1938.
- 19.
In 1938, Cordell Hull, then American Secretary of State, engaged in a famous debate with Mexican Foreign Minister Eduardo Hay concerning the failure of Mexico to compensate Americans who lost farmlands during the agrarian reforms of the late 1930s. He insisted that compensation must be “prompt, adequate, and effective.” So it is thereafter called “Hull formula.” See the letter from Secretary of State Cordell Hull to US Embassy Mexico, Najera (Washington, July 21, August 22, 1938), Documentation of Foreign Relations, 1938, Volume V, English Edition,1956, pp. 677–687, cited from An CHEN [4], pp. 1853–1938.
- 20.
Article 13 of 2004 Canada Model BIT:
1. Neither Party shall nationalize or expropriate a covered investment either directly, or indirectly through measures having an effect equivalent to nationalization to nationalization or expropriation (hereinafter referred to as “expropriation”), except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on prompt, adequate and effective compensation .
…
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be payable in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency from the date of expropriation until date of payment.
- 21.
BIT between America and Lithuania (2001), BIT between America and Uruguay (2006), BIT between United Kingdom and Angola (2000), Article 6.C of 2004 US Model BIT, Article 6.C of 2012 US Model BIT, Article 5.1 of 2005 United Kingdom Model BIT, etc. See Zaiheng PIAO, A study on the expropriation clause in the bilateral investment treaty—focused on a comparative study of Taiwan and south Korea, 2010, National Chengchi University, a thesis of Master degree, pp. 44–45. Available at http://thesis.lib.nccu.edu.tw/cgi-bin/gs32/gsweb.cgi/ccd=zhnLxG/fulltextstdcdr?dbid=%2583YXJ%2560UNZ%255C%255CE&dbpathf=/opt/fb32/db/stdcdrf/&fuid=02&dbna
- 22.
See Article2, paragraph 2, item 3 of Charter of Economic Rights and Duties of States, etc. Also see An CHEN [5].
- 23.
Ibid., p. 367. Three editions of this book have long been widely chosen as textbook of higher education in China.
- 24.
Article 7: Deprivation and Compensation. Neither contracting party shall subject investment in its territory of investors of the Other Contracting party to the measures except for public interests. Under nondiscrimination, in conformity with legal provision and against compensation shall be appropriate or tantamount to the value of an investment immediately before the measures of expropriation, nationalization and deprivation or other similar measures are taken or impending measures being to bring to bring about a result. The compensation shall be paid in a freely convertible currency without undue delay and be freely transferable between the two States of the Contracting parties.
So far, all the BITs signed by China have used very much the same words appropriate to express similar intentions. Available at http://tfs.mofcom.gov.cn/aarticle/Nocategory/201111/20111107819474.html
- 25.
See Zaiheng Piao [6]. Or see An CHEN, supra note 22, pp. 367–368.
- 26.
See An CHEN, supra note 22, pp. 368–369.
- 27.
Many academic papers have discussed the term “going concern value.” See Chongli Xu [7]. See also the following set of explanations of the term:
(1) The value of a commercial enterprise’s assets or of the enterprise itself as an active business with future earning power, as opposed to the liquidation value of the business or of its assets. Going concern value includes, for example, goodwill, also termed going value Cf, GOODWILL.” See Bryan A. Garner [8].
(2) Going concern: An active and prosperous business institution, etc.; see: Oxford Advanced Learner’s English-Chinese Dictionary, 4th ed., The Commercial Press, 2002, p. 639.
Other explanations in Chinese can be seen in various Chinese dictionaries such as New English-Chinese Dictionary, Shanghai translation publishing house, 1991, p. 538; English-Chinese Dictionary of Law, Law Press, 1985, p. 365; and Financial English Vocabulary, China Financial and Economic publishing house, 1984, p. 286.
- 28.
According to Part IV, Article 6 of Guidelines on the Treatment of Foreign Direct Investment made by The Development Committee (A forum established by the World Bank and the International Monetary Fund) in 1992, to judge whether an enterprise can be regarded as a going concern or not has two composing criteria: (1) the enterprise has assets that can generate benefits, which have been in operation for a sufficient period of time. It is according to these data that possible future income can be calculated, only under one condition that these data are with reasonable certainty; (2) if the expropriation had not occurred, the enterprise could continue producing legitimate income over the course of its economic life in the general circumstances following the taking by the state. See Chongli Xu [7], pp. 79–83; see An CHEN, supra note 22, p. 368.
- 29.
Article 13 of the 2004 Canada Model BIT reads: “ Expropriation… 2. Such compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (date of expropriation), and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.”
- 30.
- 31.
See Chongli Xu, supra note 27, pp. 70–108; see An CHEN, supra note 22, p. 369.
- 32.
See Article 4 of Agreement Between the Government of the Russian Federation and the Government of the People’s Republic of China on the Promotion and Reciprocal Protection of Investments, available at http://tfs.mofcom.gov.cn/aarticle/h/au/201002/20100206774767.html%3Cbr/%3E
- 33.
See Article 4.2 of Agreement Between the Government of Finland and the Government of the People’s Republic of China on the Promotion and Reciprocal Protection of Investments, available at http://tfs.mofcom.gov.cn/aarticle/h/au/200212/20021200058416.html
- 34.
See Article 10 of 2012 Sino-Canada BIT.
“1. Covered investments or returns of investors of either Contracting Party shall not be expropriated, nationalized or subjected to measures having an effect equivalent to expropriation or nationalization in the territory of the other Contracting Party (hereinafter referred to as “expropriation”), except for a public purpose, under domestic due procedures of law, in a non-discriminatory manner and against compensation. Such compensation shall amount to the fair market value of the investment expropriated immediately before the expropriation, or before the impending expropriation became public knowledge, whichever is earlier, shall include interest at a normal commercial rate until the date of payment, and shall be effectively realizable, freely transferable, and made without delay.”
- 35.
According to latest information from Canada, after the conclusion of 2012 Sino-Canada BIT, Gus Van Harten, a renowned Canadian scholar, has written a letter to the prime minister of Canada, in which he formally put forward 14 objections to promote public debate. Harten is an expert on investment trade deals and international arbitrations. Thus, it can be seen that even within Canada, it is not universally believed that 2012 Sino-Canada BIT has achieved so-called Universal Value, especially when one takes into account possible uncertainty that the BIT will not be approved by the Canadian Parliament. See Gus Van Harten, China Investment Treaty: Expert Sounds Alarms in Letter to Harper, available at http://thetyee.ca/Opinion/2012/10/16/China-Investment-Treaty/
- 36.
The four major rights are the rights of giving consent on a case-by-case basis, requiring the exhaustion of local remedies, applying the law of the host state, and the invocation of the exception for essential security. They are also referred to as “four safeguards” for developing countries to avoid serious risks. See An CHEN [11].
- 37.
See An CHEN, supra note 22, pp. 345–347; see also Chongli Xu [12].
- 38.
One side of the argument is that MFN clauses should be interpreted broadly. The term “treatment” in MFN clauses is in itself wide enough to be applicable to procedural matters such as dispute settlement. There is a significant volume of case law to support this position. The leading decision is Maffezini v Spain (ICSID Case No. ARB/97/7 – 25 January 2000).
The other side of the argument is that MFN clauses relate to the substantial protections afforded to investors and investments and that, therefore, their reach should not extend to procedural issues such as dispute resolution. There are decisions to support this side of the argument, examples of which include Plama v. Bulgaria (ICSID Case No. ARB/03/24) – 8 February 2005).
See DanNi Liang [13].
- 39.
See Article 3 of the BIT between Cyprus and Bulgarian (1987).
- 40.
See Article 4 of the BIT between Spain and Argentina (1991).
- 41.
See Article 2 of the BIT between United States and Ecuador (1999); see Article 4 of 2004 Canada Model BIT. See also Yanru Wei [14].
- 42.
See Article 4 of 2004 Canada Model BIT.
- 43.
Article 5 of 2012 Sino-Canada BIT reads:
Most-Favoured-Nation Treatment
1. Each Contracting Party shall accord to investors of the other Contracting Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Contracting Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
2. Each Contracting Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments of investors of a non-Contracting Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
3. For greater certainty, the “treatment” referred to in paragraphs 1 and 2 of this Article does not encompass the dispute resolution mechanisms, such as those in Part C, in other international investment treaties and other trade agreements. (emphasis added)
- 44.
See Congyan Cai [15].
- 45.
Prof. An CHEN has advocated since 2007 that the scope of MFN treatment clause should be restricted out of dispute settlement procedures; see An CHEN [16]; also available in An CHEN on International Economic Law (Five Volumes), Fudan University Press, 2008, pp. 1113–1146 and pp. 1912–1938.
- 46.
See JinSong Yu [17] and p. 136.
- 47.
See Article 12, Article 20, and Article 33 in 2012 Sino-Canada BIT.
- 48.
Articles 16, Paragraph 1, 2, 4 in 2004 Canada Model BIT have much in common with Article 14, Paragraph 1,2,3,4 in 2012 Sino-Canada BIT.
- 49.
Annex B.10 expropriation Article 1: Indirect expropriation results from a measure or series of measures of a Contracting Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
- 50.
See Jianping Shi [18].
- 51.
See Article16, Paragraph 3, 4, 5, and 6 in 2004 Canada Model BIT.
- 52.
See Article 14 in 2012 Sino-Canada BIT. Also see Interpretation of China-Canada Investment Protection Agreement by an Official from the Department of Treaty and Law of MOFCOM.
- 53.
See Jianping Shi [19].
- 54.
Generally speaking, parallel international arbitration proceedings mainly take on two forms: (1) local remedies and international remedies can be chosen at the same or by order; (2) ICSID arbitration and other international arbitration can be chosen at the same or by order. See also Mingxin Zhu [20].
- 55.
The time limit of “four months” in this paragraph is based on the relevant provisions of the Law of the People’s Republic of China on Administrative Reconsideration (adopted at the 9th Meeting of the Standing Committee of the Ninth National People’s Congress on 29 April 1999) on the date of the entry into force of this Agreement. In the event that China revises the relevant provisions on the time limit for the administrative reconsideration stipulated in the Law of the People’s Republic of China on Administrative Reconsideration in the future, China shall, in a timely manner, provide Canada with relevant information and may request consultations with Canada pursuant to Article 18 of this Agreement.
- 56.
See Article 9 Paragraphs 3, 10 of 1998 Sino-Barbados BIT.
- 57.
See Article 9, Paragraph 2 in 2003 Sino-Germany BIT and Article 6, Paragraph C in the Protocol to Sino-Germany BIT.
- 58.
See Article 26 in ICSID Convention: “Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.”
- 59.
See An CHEN [1].
- 60.
See UNCTAD [21].
- 61.
See Article 10, General Exceptions of 2004 Canada Model BIT.
- 62.
- 63.
See An CHEN [26].
- 64.
See Article 33 in 2012 Sino-Canada BIT. Many legislative and law-enforcing measures are regarded as the exclusion of jurisdiction of international arbitration, such as measures in respect of cultural industries; measures to protect human, animal, or plant life or health; measures relating to the conservation of living or nonliving exhaustible natural resources; measures for prudential reasons, nondiscriminatory measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies; measures for the protection of its essential security interests; measures for the maintenance of international peace and security; measures for protecting Cabinet confidences, personal privacy, or the confidentiality of the financial affairs; measures for enforcement of anti-monopoly law under the State Council.
- 65.
As is mentioned above, in essence, all the Exception Clauses in BITs are aimed to preserve the authority and priority of the host country. In other words, in light of the Exception Clauses, relevant laws of the host country enjoy a higher or prior status over the procedural or substantive regulations as stipulated in BITs, thus excluding the latter’s application. That is to say, Exception Clauses not only safeguard the priority of essential security interests of host country but also safeguard the sovereignty and autonomy of host country.
- 66.
See Zhixiong Huang [27].
- 67.
The lessons include unrealized expected benefits from market access, the excessive cost of duty of performance, and the loss of political autonomy of development. See Sheng Bin [28].
- 68.
See Shen Hong [29].
- 69.
At present, there is no consensus upon the prospect of Doha Round Negotiation among international society. Official scholars from developed countries intentionally disseminate various negative viewpoints regarding Doha Round such as “DR already dead,” “DR paralyzed,” or “DR expecting an imminent death.” Representatives from China, against all the odds, take a clear-cut stand and opine that Doha Round would come to life again after all negotiating parties catch up with each other and reestablish their confidence in the 8th Ministerial Conference of WTO, although it is indeed still in trouble and seems to have entered into hibernation. See Deming Chen (Minister of China’s MOFCOM), Doha Round Entering Into Hibernation During Election Period of Certain Countries, available at http://mnc.people.com.cn/BIG5/16641600.html (in Chinese) and also China Has Undertaken Real Contribution for Doha Development Round, available at http://business.sohu.com/20111219/n329493688.shtml (in Chinese). See also An CHEN [30].
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CHEN, A. (2013). Should “The Perspective of South–North Contradictions” Be Abandoned?: Focusing on 2012 Sino-Canada BIT. In: The Voice from China. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40817-5_12
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DOI: https://doi.org/10.1007/978-3-642-40817-5_12
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Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-40816-8
Online ISBN: 978-3-642-40817-5
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)