Avoid opening up the Pandora’s box: treaty parallelism, termination and survival in the reform of the China–EU investment regime

Abstract

ABSTRACT The Draft CAI leaves issues pertaining to investment protection and Investor-State Dispute Settlement under future discussion, while acknowledging the effectiveness of previous BITs between China and 26 EU Member States for at least two years after the CAI has been ratified. It is of great significance to clarify the treaty relationships within the China–EU investment regime, which will heavily affect the efforts on investment treaty modernization, and profoundly impact the international investment policy landscape. In the context of treaty parallelism, the Pandora’s box, with multiple issues including but not limited to normative overlaps and contradictions, jurisdiction overlaps and contradictions, might be opened up. Moreover, survival clauses in the previous BITs and the transitional clause in the CAI need to be taken into account to ensure an effective and smooth transition from the previous BITs to the modernized CAI. By examining relevant options for addressing problems regarding treaty parallelism, treaty termination and treaty survival, this paper offers potential choices for the reform of the China–EU investment regime.