Tearing Down the Great Wall – the New Generation Investment Treaties of the People’s Republic of China

The People’s Republic of China (PRC or China) has emerged as the world’s prime destination of foreign investment in the developing world and is continuously strengthening its position as a source of outward foreign investment, notably in Asia and Africa. In this context, the PRC has concluded over 110 bilateral investment treaties (BITs) that grant protection against expropriation and establish other standards of treatment for foreign investors in China and Chinese investors abroad. While the PRC was originally hesitant regarding international investment protection, the country started, beginning in the late 1990’s, entering into new generation BITs that break with her long-standing reservations towards national treatment for foreign investments and comprehensive investor-State dispute settlement. Surprisingly, this change in treaty practice has so far only received little attention in international legal scholarship, although the conclusion of the new generation BITs constitutes a fundamental change in China’s foreign economic policy. The paper gives an account of the PRC’s investment treaty practice and shows how her new generation BITs provide novel mechanisms of protection for foreign investors. It is argued that these treaties help to transform China’s domestic legal system significantly, support her transition to a market economy and strengthen the country’s integration into the global economy. Ultimately, China’s new investment treaty practice is also an important indicator for the evaluation of international investment law by a developing country in the struggle about the appropriate level of investment protection in an increasingly global economy

公法挑战：国际投资法走向反思还是消亡

当前国际投资法中的“合法性危机”，主要来源于现行体制中一次性的制定仲裁者--具有国内公法价值。作为回应，仲裁员应该培养公共法律思维。当务之急是仲裁者在应用和修订投资协议标准时应更广泛地援引比较公法概念，并重新认识自己的角色和职责--对于当前纠纷和整个国际投资保护体系都有影响的公法决裁者

The public law challenge: Killing or rethinking international investment law?

The current legitimacy crisis of international investment law results primarily from the friction investor-state arbitration creates with domestic public law values. As a response, arbitrators should enculturate public law thinking. They should draw on comparative public law when applying investment treaties and reconsider their role as public law adjudicators with concomitant responsibilities for the entire system of international investment protection

Changing geography: prospects for Asian actors as global rule-makers in international investment law

The past years have witnessed a shift in the geography of international investment law from a transatlantic to a transpacific perspective. Asia has become the focal point in the field. This Perspective considers to which extent Asian actors can translate their new importance into global rule-making clout

Investment dispute settlement à la carte within a multilateral institution: A path forward for the UNCITRAL process?

Divergent models for investment dispute settlement risk producing legal fragmentation. States should consider a Multilateral Institution for Dispute Settlement on Investment (MIDSI) permitting dispute settlement “à la carte”. Within MIDSI, a Multilateral Investment Court could settle investor-state disputes on an opt-in basis and serve other systemic functions

Is Arbitration a Threat or a Boon to the Legitimacy of International Investment Law?

The present Article addresses three distinct issues that are central to the critique of investment treaties and arbitration. First, it discusses the virtues of granting investors an independent right to initiate dispute settlement directly against the host state instead of forcing them to rely either on dispute resolution in domestic courts or on interstate dispute resolution. Second, this Article shows how investment-treaty arbitration takes into account private and public interests in deciding whether state conduct has violated the rights granted to investors under investment treaties. It thus argues that concepts related to investors\u27 rights, such as fair and equitable treatment or the concept of indirect expropriation, do not establish rights that unilaterally favor investors over states. Third, this Article addresses the relatively recent critique of whether arbitration, as compared to a permanent court with tenured judges, vitiates the legitimacy of international investment law. It explains the institutional choice in favor of arbitration, analyzes the independence and impartiality of arbitrators and shows which control mechanisms preclude the arbitral mechanism from becoming a source of pro-investor bias. Finally, the Article concludes by pointing to strategies by which the present system of investment-treaty arbitration can, and increasingly does, accommodate the legitimate concerns of nonparties to the proceedings. Such strategies, it is argued, do not require a radical redesign of the entire system, but can be integrated into the existing system of international investment law and arbitration. In sum, this Article argues that investment treaties and investor-state arbitration constitute a legitimate vehicle for structuring and stabilizing foreign investment activities

变化的格局：亚洲国家作为全球投资规则制定者的前景

The past years have witnessed a shift in the geography of international investment law from a transatlantic to a transpacific perspective. Asia has become the focal point in the field. This Perspective considers to which extent Asian actors can translate their new importance into global rule-making clout