Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0004
Na Li
The chapter explains that investment treaties are not the only drivers of Chinese foreign direct investments (FDIs). Tax factors also play an important role in impacting foreign direct investment into China (FDIs into China) and Chinese investment to other countries (Chinese outbound investment). This chapter examines the following questions: what are the impacts of tax factors on FDIs? Is the Chinese experience on using tax instruments consistent with these empirical findings? Whether China’s implementation of anti-tax avoidance measures might drive FDIs away from China? What are the tax competition concerns for China? The last section contains a conclusion. This chapter demonstrates that, despite the fact that debates are still ongoing about the impact of tax factors on FDI, Chinese experience shows that tax factors are used extensively by the Chinese government in both attracting FDIs into China as well as relieving tax disadvantages of Chinese outbound investment. Although China’s experience still cannot solve the mystery of whether tax incentives are effective on impacting FDIs, its implementing anti-tax avoidance measures in recent years have disclosed that tax transparency and certainty are important tax factors impacting business decisions. Therefore, China should take further into account the impact of tax factors on business before FDIs are scared away when implementing aggressive anti-tax avoidance measures.
本章解释了投资协定并不是中国对外直接投资(fdi)的唯一驱动力。税收因素在影响外商对华直接投资(fdi into China)和中国对外投资(China outbound investment)方面也发挥着重要作用。本章探讨了以下问题:税收因素对外商直接投资的影响是什么?中国在使用税收工具方面的经验是否与这些实证研究结果一致?中国实施反避税措施是否会导致外国直接投资撤离中国?中国对税收竞争的担忧是什么?最后一部分是结论。本章表明，尽管关于税收因素对外国直接投资的影响的争论仍在继续，但中国的经验表明，中国政府在吸引外国直接投资进入中国以及缓解中国对外投资的税收劣势方面广泛使用了税收因素。尽管中国的经验仍不能解决税收优惠是否有效影响外商直接投资的谜团，但近年来中国反避税措施的实施表明，税收透明度和确定性是影响企业决策的重要税收因素。因此，中国在实施积极的反避税措施时，应在吓跑外国直接投资之前，进一步考虑税收因素对商业的影响。
{"title":"Impact of Tax Factors on Chinese FDIs","authors":"Na Li","doi":"10.1093/oso/9780198827450.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0004","url":null,"abstract":"The chapter explains that investment treaties are not the only drivers of Chinese foreign direct investments (FDIs). Tax factors also play an important role in impacting foreign direct investment into China (FDIs into China) and Chinese investment to other countries (Chinese outbound investment). This chapter examines the following questions: what are the impacts of tax factors on FDIs? Is the Chinese experience on using tax instruments consistent with these empirical findings? Whether China’s implementation of anti-tax avoidance measures might drive FDIs away from China? What are the tax competition concerns for China? The last section contains a conclusion. This chapter demonstrates that, despite the fact that debates are still ongoing about the impact of tax factors on FDI, Chinese experience shows that tax factors are used extensively by the Chinese government in both attracting FDIs into China as well as relieving tax disadvantages of Chinese outbound investment. Although China’s experience still cannot solve the mystery of whether tax incentives are effective on impacting FDIs, its implementing anti-tax avoidance measures in recent years have disclosed that tax transparency and certainty are important tax factors impacting business decisions. Therefore, China should take further into account the impact of tax factors on business before FDIs are scared away when implementing aggressive anti-tax avoidance measures.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126153745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0025
Jane Y. Willems
This chapter first examines and compares the decisions rendered by arbitral tribunals and state courts, on the scope of the consent clauses contained in the Chinese bilateral investment treaties (BITs) of the first generation, with decisions rendered under other BITs with similar wordings. The decisions relating to Chinese BITs have contributed to the debate on the interpretation of treaties contained in arbitral awards that have extended the subject matter of the arbitral jurisdiction and the subsequent state court decisions that have reviewed, and on notable occasions have sanctioned these awards. These decisions contain more particulars pertaining to BITs emanating from socialists’ countries than characteristics specific to China’s BITs. The situation is different for other jurisdictional issues. The territorial jurisdiction of arbitral tribunals under the Chinese BITs—and whether they apply to a special administrative region (SAR)—was examined under the interpretation of the territorial scope of treaties and under the moving frontier rule and the exceptions to these principles, in particular the intent expressed by China. The question of the nationality of the investor seeking the protection of a Chinese BITs also raised Chinese characteristics, as it allowed for the first-time arbitral tribunals to apply, at an international level, the nationality test for both individuals and corporations established in the SARs contained in the municipal law.
{"title":"Investment Disputes under China’s BITs","authors":"Jane Y. Willems","doi":"10.1093/oso/9780198827450.003.0025","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0025","url":null,"abstract":"This chapter first examines and compares the decisions rendered by arbitral tribunals and state courts, on the scope of the consent clauses contained in the Chinese bilateral investment treaties (BITs) of the first generation, with decisions rendered under other BITs with similar wordings. The decisions relating to Chinese BITs have contributed to the debate on the interpretation of treaties contained in arbitral awards that have extended the subject matter of the arbitral jurisdiction and the subsequent state court decisions that have reviewed, and on notable occasions have sanctioned these awards. These decisions contain more particulars pertaining to BITs emanating from socialists’ countries than characteristics specific to China’s BITs. The situation is different for other jurisdictional issues. The territorial jurisdiction of arbitral tribunals under the Chinese BITs—and whether they apply to a special administrative region (SAR)—was examined under the interpretation of the territorial scope of treaties and under the moving frontier rule and the exceptions to these principles, in particular the intent expressed by China. The question of the nationality of the investor seeking the protection of a Chinese BITs also raised Chinese characteristics, as it allowed for the first-time arbitral tribunals to apply, at an international level, the nationality test for both individuals and corporations established in the SARs contained in the municipal law.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129552476","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/OSO/9780198827450.003.0006
J. Huang
Before conducting profound reforms of the trade and investment legal framework, China often implements the reform on a small scale, generally in specified geographic zones as testing grounds. After these testing grounds generate fruitful results, the reform may be implemented nationwide. A typical example is the five special economic zones established in the 1980s. After the Cultural Revolution, the first round of Chinese regulatory reform in trade and investment took place in 1978. Led by the late Premier Deng Xiaoping, China implemented the opening-up policy. Deng established five special economic zones to attract foreign investment by allowing a greater role for individual autonomy and Western-style market forces. Lessons learned from the special economic zones were implemented nationwide. For example, the corporate Sino-foreign joint venture was first tested in special economic zones and, after it proved successful, was adopted nationwide. These zones are also the pioneers in China to use tax holidays to attract foreign investment and many regions in inland China followed their example. In the 1990s, special economic zones gradually ended their mission as testing grounds. Among all the regulatory reforms conducted in the free trade zones (FTZs), adopting a negative list to regulate the foreign investment market access is important, because it significantly departs from China’s long-time domestic practice and aims to bridge China’s investment law with high-standard international agreements. This chapter focuses on the negative list adopted by China’s FTZs to regulate access to foreign investment markets and explores its significance, analyses its insufficiencies, and proposes suggestions for improvement.
{"title":"Nationwide Regulatory Reform Starting from China’s Free Trade Zones","authors":"J. Huang","doi":"10.1093/OSO/9780198827450.003.0006","DOIUrl":"https://doi.org/10.1093/OSO/9780198827450.003.0006","url":null,"abstract":"Before conducting profound reforms of the trade and investment legal framework, China often implements the reform on a small scale, generally in specified geographic zones as testing grounds. After these testing grounds generate fruitful results, the reform may be implemented nationwide. A typical example is the five special economic zones established in the 1980s. After the Cultural Revolution, the first round of Chinese regulatory reform in trade and investment took place in 1978. Led by the late Premier Deng Xiaoping, China implemented the opening-up policy. Deng established five special economic zones to attract foreign investment by allowing a greater role for individual autonomy and Western-style market forces. Lessons learned from the special economic zones were implemented nationwide. For example, the corporate Sino-foreign joint venture was first tested in special economic zones and, after it proved successful, was adopted nationwide. These zones are also the pioneers in China to use tax holidays to attract foreign investment and many regions in inland China followed their example. In the 1990s, special economic zones gradually ended their mission as testing grounds. Among all the regulatory reforms conducted in the free trade zones (FTZs), adopting a negative list to regulate the foreign investment market access is important, because it significantly departs from China’s long-time domestic practice and aims to bridge China’s investment law with high-standard international agreements. This chapter focuses on the negative list adopted by China’s FTZs to regulate access to foreign investment markets and explores its significance, analyses its insufficiencies, and proposes suggestions for improvement.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"481 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131116738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/OSO/9780198827450.003.0018
A. Joubin-Bret, Cristián Rodríguez Chiffelle
One of the most important and concrete outcomes of China’s G20 presidency was the establishment of a Trade and Investment Working Group (TIWG), recognizing that robust and sustainable trade and investment reinforces economic growth and calling for enhanced G20 trade and investment cooperation. The Chinese presidency’s renewed approach was not only to bring stand-alone investment issues to the G20 table, but also to re-spark the conversation on investment and trade policy-making by bringing them closer together again, acknowledging the complementarity of trade and investment as the engines of economic growth. This has paved the way for coherent, integrated discussions on trade and investment for the first time in fifteen years in the global political arena. On the investment side, the TIWG delivered the G20 Guiding Principles for Global Investment Policy-Making (G20 Guiding Principles), a key outcome of the Chinese presidency. These were endorsed by trade ministers in Shanghai in July 2016 and then by heads of state at the Hangzhou Summit in September 2016, with the objective of fostering an open, transparent, and conducive global policy environment for investment; promoting coherence in national and international investment policy-making; and promoting inclusive economic growth and sustainable development. The G20 Guiding Principles are introduced in the chapter. It begins with a background review of their crafting and various attempts at devising guiding principles on international investment, and identifies some of the guidelines that have paved the way for the Principles. The chapter then focuses on the objectives, scope, and content of the G20 Guiding Principles and considers their potential impact on policy-making at the domestic and international levels. Finally, the chapter addresses the broader work of the G20 TIWG, including the trade and investment linkage, analyses the general state of play of G20 countries’ investment agreements, and offers some preliminary conclusions and ways forward.
{"title":"G20 Guiding Principles for Global Investment Policy-making","authors":"A. Joubin-Bret, Cristián Rodríguez Chiffelle","doi":"10.1093/OSO/9780198827450.003.0018","DOIUrl":"https://doi.org/10.1093/OSO/9780198827450.003.0018","url":null,"abstract":"One of the most important and concrete outcomes of China’s G20 presidency was the establishment of a Trade and Investment Working Group (TIWG), recognizing that robust and sustainable trade and investment reinforces economic growth and calling for enhanced G20 trade and investment cooperation. The Chinese presidency’s renewed approach was not only to bring stand-alone investment issues to the G20 table, but also to re-spark the conversation on investment and trade policy-making by bringing them closer together again, acknowledging the complementarity of trade and investment as the engines of economic growth. This has paved the way for coherent, integrated discussions on trade and investment for the first time in fifteen years in the global political arena. On the investment side, the TIWG delivered the G20 Guiding Principles for Global Investment Policy-Making (G20 Guiding Principles), a key outcome of the Chinese presidency. These were endorsed by trade ministers in Shanghai in July 2016 and then by heads of state at the Hangzhou Summit in September 2016, with the objective of fostering an open, transparent, and conducive global policy environment for investment; promoting coherence in national and international investment policy-making; and promoting inclusive economic growth and sustainable development. The G20 Guiding Principles are introduced in the chapter. It begins with a background review of their crafting and various attempts at devising guiding principles on international investment, and identifies some of the guidelines that have paved the way for the Principles. The chapter then focuses on the objectives, scope, and content of the G20 Guiding Principles and considers their potential impact on policy-making at the domestic and international levels. Finally, the chapter addresses the broader work of the G20 TIWG, including the trade and investment linkage, analyses the general state of play of G20 countries’ investment agreements, and offers some preliminary conclusions and ways forward.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117071301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0005
Lu Wang
The rapid rise of state-owned enterprises (SOEs) and their cross-border investment activities in recent years has raised considerable concerns, particularly in relation to the potential detrimental impacts such investments may have on national security of host states. SOE investments are mostly from emerging economies, especially China, and are prominent in the critical or ‘strategic’ industries, such as energy, infrastructure and telecommunication sectors, and financial services. In this context, certain national security considerations in relation to foreign SOE investments have been accentuated in an increasing number of states. Here a very important issue is the role of international investment agreements (IIAs) in respect of national security protections. China’s investment treaties will be reviewed in respect of the treatment of SOEs with the objective of assessing the extent to which state capitalism has affected and contributes to the design of international treaties. The analysis will consider the period, partners, and typology of provisions. Most IIAs only provide protections in respect of the post-establishment phase. Thus, hypothetically after the Hinkley C project is established, the UK government could decide to close down the nuclear power station or divest the project for environmental or energy safety reasons. A similar situation did occur in the Vattenfall case, where the Swedish state-owned energy company brought cases in both the German Constitutional Court and ECT tribunals. Nevertheless, comparable scenarios may arise again in future SOE investments, and the problem is whether international investment agreements provide any scope for states to address their national security concerns over SOE investments.
{"title":"Chinese SOE Investments and the National Security Protection under IIAs","authors":"Lu Wang","doi":"10.1093/oso/9780198827450.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0005","url":null,"abstract":"The rapid rise of state-owned enterprises (SOEs) and their cross-border investment activities in recent years has raised considerable concerns, particularly in relation to the potential detrimental impacts such investments may have on national security of host states. SOE investments are mostly from emerging economies, especially China, and are prominent in the critical or ‘strategic’ industries, such as energy, infrastructure and telecommunication sectors, and financial services. In this context, certain national security considerations in relation to foreign SOE investments have been accentuated in an increasing number of states. Here a very important issue is the role of international investment agreements (IIAs) in respect of national security protections. China’s investment treaties will be reviewed in respect of the treatment of SOEs with the objective of assessing the extent to which state capitalism has affected and contributes to the design of international treaties. The analysis will consider the period, partners, and typology of provisions. Most IIAs only provide protections in respect of the post-establishment phase. Thus, hypothetically after the Hinkley C project is established, the UK government could decide to close down the nuclear power station or divest the project for environmental or energy safety reasons. A similar situation did occur in the Vattenfall case, where the Swedish state-owned energy company brought cases in both the German Constitutional Court and ECT tribunals. Nevertheless, comparable scenarios may arise again in future SOE investments, and the problem is whether international investment agreements provide any scope for states to address their national security concerns over SOE investments.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115130678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0022
Susan A. Finder
This chapter focuses on an unexplored aspect of Chinese state-owned enterprises (SOEs) doing business overseas--the interaction of these companies with the integrity systems implemented by the multi-lateral development banks and development institutions (MDBs), aimed at preventing fraud, corruption, and other abuses in projects undertaken by those institutions. In recent years, many more Chinese companies have begun doing business overseas, encouraged by the ‘Going Out Policy’ and One Belt One Road and have been more actively bidding for MDB projects. For various reasons, some Chinese companies fall foul of the MDBs’ integrity systems. The chapter provides a brief overview of the integrity systems developed the MDBs, focusing on Chinese company interactions with that system, the efforts of the Asian Infrastructure Investment Bank (AIIB) to integrate with that system, as well as the view of the Chinese government towards this system. It looks at the status of and possible trends in the integration of the Chinese anticorruption regulatory system with the MDB system.
{"title":"The International Fraud and Corruption Sanctioning System","authors":"Susan A. Finder","doi":"10.1093/oso/9780198827450.003.0022","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0022","url":null,"abstract":"This chapter focuses on an unexplored aspect of Chinese state-owned enterprises (SOEs) doing business overseas--the interaction of these companies with the integrity systems implemented by the multi-lateral development banks and development institutions (MDBs), aimed at preventing fraud, corruption, and other abuses in projects undertaken by those institutions. In recent years, many more Chinese companies have begun doing business overseas, encouraged by the ‘Going Out Policy’ and One Belt One Road and have been more actively bidding for MDB projects. For various reasons, some Chinese companies fall foul of the MDBs’ integrity systems. The chapter provides a brief overview of the integrity systems developed the MDBs, focusing on Chinese company interactions with that system, the efforts of the Asian Infrastructure Investment Bank (AIIB) to integrate with that system, as well as the view of the Chinese government towards this system. It looks at the status of and possible trends in the integration of the Chinese anticorruption regulatory system with the MDB system.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122785516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0002
Michael J Enrigh
One of the most important components in China’s economic reform programme has been the economy’s gradual opening to inward foreign direct investment (IFDI) and foreign invested enterprises (FIEs). While China has become more and more open to IFDI over time, it remains far more closed than most large economies. In recent years, we have seen the apparent contradictory trends toward developing what appears to be a more liberal legal environment for IFDI combined with highly publicized examples of pushback against FIEs in China. In order to understand China’s approach towards IFDI and FIEs, it is necessary to understand the historical background of IFDI and FIEs in China, the objective function that China applies to IFDI and FIEs, and the fact that the impact of IFDI and FIEs on China’s economy is often underestimated. These features will influence any investment treaties that might be reached with China and how they will be implemented. This chapter also provides a broad-brush perspective on China’s approach toward IFDI and FIEs. It then describes the results of novel method of estimating the economic benefits that IFDI and FIEs have brought to China. Finally, the chapter provides perspectives for those interested in the potential for the negotiation and implementation of investment agreements with China.
{"title":"China’s Inward Investment","authors":"Michael J Enrigh","doi":"10.1093/oso/9780198827450.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0002","url":null,"abstract":"One of the most important components in China’s economic reform programme has been the economy’s gradual opening to inward foreign direct investment (IFDI) and foreign invested enterprises (FIEs). While China has become more and more open to IFDI over time, it remains far more closed than most large economies. In recent years, we have seen the apparent contradictory trends toward developing what appears to be a more liberal legal environment for IFDI combined with highly publicized examples of pushback against FIEs in China. In order to understand China’s approach towards IFDI and FIEs, it is necessary to understand the historical background of IFDI and FIEs in China, the objective function that China applies to IFDI and FIEs, and the fact that the impact of IFDI and FIEs on China’s economy is often underestimated. These features will influence any investment treaties that might be reached with China and how they will be implemented. This chapter also provides a broad-brush perspective on China’s approach toward IFDI and FIEs. It then describes the results of novel method of estimating the economic benefits that IFDI and FIEs have brought to China. Finally, the chapter provides perspectives for those interested in the potential for the negotiation and implementation of investment agreements with China.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126766126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/OSO/9780198827450.003.0014
Heng Wang
The chapter analyses China’s FTA approach to investment in terms of malleability, and its implications for the RCEP. The following questions are discussed: what is the trend of China’s FTA approach to investment concerning malleability? Is China a rule follower, shaker, or maker? How may China’s approach the RCEP regarding investment? The chapter demonstrates, firstly, that China is willing to substantially improve rules and embrace newer style investment stipulations. The ChAFTA contains innovative safeguards of regulatory autonomy and ISDS procedural features (including the roster of arbitration panellists, the public welfare notice, the code of conduct for arbitrators, and the joint interpretation of the annex by treaty parties). Secondly, China will probably be a rule shaker in the short to medium term, and possibly becomes a rule-maker in the long term. Its approach may evolve from selective adaption to targeted innovation. The reason is plain as China will be increasingly active in the development of investment norms due to the need to protect its outbound investment and enhance investor confidence in inbound investment. As a rule-shaker in the RCEP negotiations, China will often modify proposals of partners rather than offer a new set of clauses. Given various factors (including the unique nature of mega FTA, ‘stockpile’ of existing investment agreements, and China’s approach to the ASEAN), China may take a more flexible stance in the RCEP than in bilateral FTAs. The RCEP will affect the shaping of China’s FTA approach to investment.
{"title":"The RCEP Investment Rules and China","authors":"Heng Wang","doi":"10.1093/OSO/9780198827450.003.0014","DOIUrl":"https://doi.org/10.1093/OSO/9780198827450.003.0014","url":null,"abstract":"The chapter analyses China’s FTA approach to investment in terms of malleability, and its implications for the RCEP. The following questions are discussed: what is the trend of China’s FTA approach to investment concerning malleability? Is China a rule follower, shaker, or maker? How may China’s approach the RCEP regarding investment? The chapter demonstrates, firstly, that China is willing to substantially improve rules and embrace newer style investment stipulations. The ChAFTA contains innovative safeguards of regulatory autonomy and ISDS procedural features (including the roster of arbitration panellists, the public welfare notice, the code of conduct for arbitrators, and the joint interpretation of the annex by treaty parties). Secondly, China will probably be a rule shaker in the short to medium term, and possibly becomes a rule-maker in the long term. Its approach may evolve from selective adaption to targeted innovation. The reason is plain as China will be increasingly active in the development of investment norms due to the need to protect its outbound investment and enhance investor confidence in inbound investment. As a rule-shaker in the RCEP negotiations, China will often modify proposals of partners rather than offer a new set of clauses. Given various factors (including the unique nature of mega FTA, ‘stockpile’ of existing investment agreements, and China’s approach to the ASEAN), China may take a more flexible stance in the RCEP than in bilateral FTAs. The RCEP will affect the shaping of China’s FTA approach to investment.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114310142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/OSO/9780198827450.003.0026
Claire Wilson
The case of Ping An v Kingdom of Belgium is a significant addition to investor–state dispute settlement (ISDS) jurisprudence. It concerns the first mainland Chinese company to file a claim with the International Centre for the Settlement of Investment Disputes (ICSID) and is the first known ICSID case involving the Kingdom of Belgium as a respondent. The dispute emanated from actions that were taken during the 2008 global financial crisis—therefore it is of considerable public importance. The level of protection available to Chinese investments where China has entered into successive treaties is one of the main issues to be explored in this chapter. The commentary also analyses the facts surrounding the Ping An claim and considers how the award rendered by the tribunal could affect future claims.
{"title":"Protecting Chinese Investment Under the Investor–state Dispute Settlement Regime","authors":"Claire Wilson","doi":"10.1093/OSO/9780198827450.003.0026","DOIUrl":"https://doi.org/10.1093/OSO/9780198827450.003.0026","url":null,"abstract":"The case of Ping An v Kingdom of Belgium is a significant addition to investor–state dispute settlement (ISDS) jurisprudence. It concerns the first mainland Chinese company to file a claim with the International Centre for the Settlement of Investment Disputes (ICSID) and is the first known ICSID case involving the Kingdom of Belgium as a respondent. The dispute emanated from actions that were taken during the 2008 global financial crisis—therefore it is of considerable public importance. The level of protection available to Chinese investments where China has entered into successive treaties is one of the main issues to be explored in this chapter. The commentary also analyses the facts surrounding the Ping An claim and considers how the award rendered by the tribunal could affect future claims.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129496013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0012
M. Levine
If China is not a rule-maker, does it follow that it is a rule-taker? Certain facts appear to point in this direction, i.e. the acute influence of North American treaty practice, especially that of the United States, and Beijing’s reluctance to update its own model treaty. However, research into China’s participation at the World Trade Organization (WTO) and negotiation of regional trade agreements (RTAs) points to an alternative conceptualization. Beijing is neither a rule-maker nor a rule-taker but, rather, increasingly acts a ‘rule-shaker’. This is important for understanding China’s most recent IIAs. In particular, it helps to make sense of specific provisions that other commentators have described as ‘puzzling’ and allows us to move away from labelling Beijing’s most recent treaties as ‘incoherent’. The first section reviews the categories that have been devised by scholars for China’s voluminous investment treaty practice, which leads to consideration of Chinese IIAs concluded from 2008 onwards as forming a protean Fourth Generation. This includes various changes to substantive investment protection provisions. And many of these novel formulations are indicative of a broader trend whereby states are seeking to balance investment protection against non-investment objectives. A leading explanation for the growth of balancing mechanisms in China’s Fourth Generation is the ‘NAFTA-ization thesis’. In examining the specific provisions in detail, however, it becomes clear that this offers only a partial explanation that is complimented by a selective adaptation lens.
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