Pub Date : 2019-02-14DOI: 10.1093/OSO/9780198827450.003.0023
J. Slawotsky
This chapter analyses the ever-increasing importance of Chinese influence on international investment law, which is a key branch of international economic law. By using the mechanics of the current architecture to assume a leadership role, China will likely become the new architect of the legal and financial orders. New infrastructure and development banks, a growing usage of the yuan and other incipient transformations, herald an upcoming era of new international law architects. While new institutions may initially work in conjunction within the existing framework, it is probable that the new architects’ alternatives will reach a critical mass and achieve an independent role in the international economic and legal orders. This transformation will likely lead to rewriting the rules and will serve to devalue the institutions which have enforced the global governance architecture over the previous seventy years. At a minimum, the replacement of the present architects will present a definitional, let alone enforcement problem with respect to international law. A different code of conduct may conflict with current norms and international law will need to focus on this potential dichotomy between former and new standards and customs. The failure to address this impending clash of customs may lead to a fracture of global cooperation and enforcement of international law, reduced prosperity, and heightened economic and military conflict.
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Pub Date : 2019-02-14DOI: 10.1093/oso/9780198827450.003.0019
Sophie Meunier
The exponential growth of Chinese direct investment has been accompanied in some cases by controversy and even resistance, both in developing and in developed economies. Around the world, critics have expressed fears and denounced some of the potential dangers of this investment, such as lowering of local labour standards, hollowing out of industrial core through repatriation of assets, and acquisition of dual use technology. Alarmist media headlines have warned against a Chinese takeover of national economies one controversial investment deal at a time. The ensuing political backlash has often received considerable media attention and increased scrutiny over subsequent deals. What explains the political challenges posed by the spectacular explosion of Chinese direct investment over the past few years in the United States (US) and the European Union (EU)? How and why have attitudes and policies in the West changed over the past decade towards Chinese FDI? This chapter considers two alternative explanations for the political challenges triggered by Chinese investment in Western countries. The first is that Chinese FDI causes political unease because of its novelty. The second is the perception that there is something inherently different about the nature of Chinese FDI and therefore it should not be treated politically like any other foreign investment. These two explanations lead to a different set of predictions for the future of Chinese FDI in Europe and the US. The first section analyses how the novelty of Chinese FDI may pose political challenges to Western politicians and publics and compares the current phenomenon with past instances of political problematic sources of FDI. Section II examines the argument that there is something inherently different about Chinese FDI, notably as stemming from an emerging economy, a unique political system, and a non-ally in the security dimension. The third section explores the domestic political context in which these challenges are raised: in Europe, the euro crisis and the rise of populism; in the US, the focus on geopolitical competition and the rise of economic nationalism. The conclusion raises some implications of these political challenges on the future of Chinese outward investment.
{"title":"Beware of Chinese Bearing Gifts","authors":"Sophie Meunier","doi":"10.1093/oso/9780198827450.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0019","url":null,"abstract":"The exponential growth of Chinese direct investment has been accompanied in some cases by controversy and even resistance, both in developing and in developed economies. Around the world, critics have expressed fears and denounced some of the potential dangers of this investment, such as lowering of local labour standards, hollowing out of industrial core through repatriation of assets, and acquisition of dual use technology. Alarmist media headlines have warned against a Chinese takeover of national economies one controversial investment deal at a time. The ensuing political backlash has often received considerable media attention and increased scrutiny over subsequent deals. What explains the political challenges posed by the spectacular explosion of Chinese direct investment over the past few years in the United States (US) and the European Union (EU)? How and why have attitudes and policies in the West changed over the past decade towards Chinese FDI? This chapter considers two alternative explanations for the political challenges triggered by Chinese investment in Western countries. The first is that Chinese FDI causes political unease because of its novelty. The second is the perception that there is something inherently different about the nature of Chinese FDI and therefore it should not be treated politically like any other foreign investment. These two explanations lead to a different set of predictions for the future of Chinese FDI in Europe and the US. The first section analyses how the novelty of Chinese FDI may pose political challenges to Western politicians and publics and compares the current phenomenon with past instances of political problematic sources of FDI. Section II examines the argument that there is something inherently different about Chinese FDI, notably as stemming from an emerging economy, a unique political system, and a non-ally in the security dimension. The third section explores the domestic political context in which these challenges are raised: in Europe, the euro crisis and the rise of populism; in the US, the focus on geopolitical competition and the rise of economic nationalism. The conclusion raises some implications of these political challenges on the future of Chinese outward investment.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"44 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":"122700072","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/9780198827450.003.0010
F. Marisi, Qian Wang
Although the China–EU Comprehensive Agreement on Investment (CAI), currently under negotiation, covers only bilateral investments, it may clear the path for a potential free trade agreement between the parties. Its relevance goes beyond the purely economic and legal impact, owing to the central importance that these two regions have both economically and strategically in their wider neighbourhood and worldwide, often in competition with the interests of other world powers. In particular, the chapter identifies the provisions of fair and equitable treatment (FET), taxation, and transparency as the core issues in the negotiation process, and highlights both their features and relevance. The latter can be inferred from the frequency of alleged breaches in investor–state cases, and therefore it is on these issues that the legal discussion of the greater part of arbitration cases focuses. It is of essence that China and the EU carefully design all the clauses in the CAI, concluding a treaty able to foster investments in both directions and satisfy the parties’ interests, both as home states of investors and as host states. With these features, the CAI has full potential to serve as a role model for the rest of the world.
{"title":"Drivers and Issues of China–EU Negotiations for a Comprehensive Agreement on Investment","authors":"F. Marisi, Qian Wang","doi":"10.1093/oso/9780198827450.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780198827450.003.0010","url":null,"abstract":"Although the China–EU Comprehensive Agreement on Investment (CAI), currently under negotiation, covers only bilateral investments, it may clear the path for a potential free trade agreement between the parties. Its relevance goes beyond the purely economic and legal impact, owing to the central importance that these two regions have both economically and strategically in their wider neighbourhood and worldwide, often in competition with the interests of other world powers. In particular, the chapter identifies the provisions of fair and equitable treatment (FET), taxation, and transparency as the core issues in the negotiation process, and highlights both their features and relevance. The latter can be inferred from the frequency of alleged breaches in investor–state cases, and therefore it is on these issues that the legal discussion of the greater part of arbitration cases focuses. It is of essence that China and the EU carefully design all the clauses in the CAI, concluding a treaty able to foster investments in both directions and satisfy the parties’ interests, both as home states of investors and as host states. With these features, the CAI has full potential to serve as a role model for the rest of the world.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"79 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":"122864934","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/9780198827450.003.0016
Horia Ciurtin
The author provides a post-sovereign enquiry in Taiwan’s investment treaty system. Going beyond the traditional legal divisions, Taiwan showed that it can bypass such limitations, being a main trend-setter in innovating the area of international economic law. Specifically, a close look at Taiwan’s nexus of investment treaty is eye-opening; Taiwan concluded twenty-nine BITs and six ample economic cooperation agreements with related investment provisions. The number and the importance of these agreements reveal that the concept of international recognition does not directly influence the behaviour of states which are willing to interact legally and economically. In this regard, non-diplomatic relations might be used as a step forward, as Taiwan is closer to conclude an agreement with another post-sovereign entity, the European Union. This global actor may open up the scene for a multi-tier dynamic where some of its component member states are in principle against any liaison with Taiwan, but will be bound to it because of their membership to the EU. To solve such legal contradiction, the established instruments of international law cannot be applied, and a new theoretical framework shall be developed. To this end, the starting point must be to discuss sovereignty thoroughly. The chapter assesses the polity’s effort for the development of diplomatic structures by means of investment agreements, in this way avoiding the problems related to recognition. This kind of agreement can be considered as a litmus test, showing Taiwan’s capacity to shift traditional categories of Westphalian international law and emerge as a self-standing actor.
{"title":"A New Era in Cross-strait Relations? A Post-sovereign Enquiry in Taiwan’s Investment Treaty System","authors":"Horia Ciurtin","doi":"10.1093/OSO/9780198827450.003.0016","DOIUrl":"https://doi.org/10.1093/OSO/9780198827450.003.0016","url":null,"abstract":"The author provides a post-sovereign enquiry in Taiwan’s investment treaty system. Going beyond the traditional legal divisions, Taiwan showed that it can bypass such limitations, being a main trend-setter in innovating the area of international economic law. Specifically, a close look at Taiwan’s nexus of investment treaty is eye-opening; Taiwan concluded twenty-nine BITs and six ample economic cooperation agreements with related investment provisions. The number and the importance of these agreements reveal that the concept of international recognition does not directly influence the behaviour of states which are willing to interact legally and economically. In this regard, non-diplomatic relations might be used as a step forward, as Taiwan is closer to conclude an agreement with another post-sovereign entity, the European Union. This global actor may open up the scene for a multi-tier dynamic where some of its component member states are in principle against any liaison with Taiwan, but will be bound to it because of their membership to the EU. To solve such legal contradiction, the established instruments of international law cannot be applied, and a new theoretical framework shall be developed. To this end, the starting point must be to discuss sovereignty thoroughly. The chapter assesses the polity’s effort for the development of diplomatic structures by means of investment agreements, in this way avoiding the problems related to recognition. This kind of agreement can be considered as a litmus test, showing Taiwan’s capacity to shift traditional categories of Westphalian international law and emerge as a self-standing actor.","PeriodicalId":112957,"journal":{"name":"China's International Investment Strategy","volume":"27 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114027088","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}
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