Pub Date : 2022-08-08DOI: 10.1080/10192557.2022.2102585
J. Chaisse, Irma Mosquera
ABSTRACT International tax law has not been discussed much by the lawyers involved in public international law. Due to this, there exists a gap, as presently, developments in international law do not correspond to the constant developments in international tax law. This article seeks to highlight the challenges that would arise from the normative expansion of taxation law. Scholars have highlighted the need for a multilateral tax treaty. However, such attempts made by the UN and OECD have failed due to difficulties in ensuring the distribution of taxation power between the source and residence states. This issue becomes more prominent for digital economy taxation, as the digital firms may trade and operate without any physical presence in a state. The present set of proposals suggests introducing new rules for fair allocation of taxing rights and duty on the part of states to tax at a minimum rate. To this end, OECD has introduced the BEPS Inclusive Framework that would include even non-OECD members in decision making. This article underlines the impact of international tax law on different areas of international law and further points out the best practices in trade, investment, and international law so as to bring them in line with the developments in international tax law.
{"title":"Public international law, international taxation and tax dispute resolution","authors":"J. Chaisse, Irma Mosquera","doi":"10.1080/10192557.2022.2102585","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102585","url":null,"abstract":"ABSTRACT International tax law has not been discussed much by the lawyers involved in public international law. Due to this, there exists a gap, as presently, developments in international law do not correspond to the constant developments in international tax law. This article seeks to highlight the challenges that would arise from the normative expansion of taxation law. Scholars have highlighted the need for a multilateral tax treaty. However, such attempts made by the UN and OECD have failed due to difficulties in ensuring the distribution of taxation power between the source and residence states. This issue becomes more prominent for digital economy taxation, as the digital firms may trade and operate without any physical presence in a state. The present set of proposals suggests introducing new rules for fair allocation of taxing rights and duty on the part of states to tax at a minimum rate. To this end, OECD has introduced the BEPS Inclusive Framework that would include even non-OECD members in decision making. This article underlines the impact of international tax law on different areas of international law and further points out the best practices in trade, investment, and international law so as to bring them in line with the developments in international tax law.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"192 - 203"},"PeriodicalIF":0.5,"publicationDate":"2022-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44109223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-01DOI: 10.1080/10192557.2022.2102590
Suranjali Tandon
ABSTRACT The growing trend in tax-related disputes pursued under the alternative legal mechanism of investment treaty arbitration is proving problematic. Since the taxpayer can raise claims on sovereign, a right not afforded in domestic or international tax law of many developing countries. This paper brings out more important and under-explored issues with the application of investment law to tax matters – the standards of the former are vague, outdated and applied disproportionately to the State. This creates a tension, especially when outdated standards under the customary international law are applied to matters of international tax law. This is particularly important in the light of rapidly evolving norms relating to tax avoidance. The paper takes the Indian case of retroactive tax legislation to demonstrate how tax policy may be constrained by the rights afforded to the foreign investor that are superior to those guaranteed under international tax and domestic law. Further, the paper reflects on whether the exclusion of tax-related disputes explicitly from investment agreements may not be enough.
{"title":"Issues and challenges with applying investment agreements to tax matters in the context of India’s experience","authors":"Suranjali Tandon","doi":"10.1080/10192557.2022.2102590","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102590","url":null,"abstract":"ABSTRACT The growing trend in tax-related disputes pursued under the alternative legal mechanism of investment treaty arbitration is proving problematic. Since the taxpayer can raise claims on sovereign, a right not afforded in domestic or international tax law of many developing countries. This paper brings out more important and under-explored issues with the application of investment law to tax matters – the standards of the former are vague, outdated and applied disproportionately to the State. This creates a tension, especially when outdated standards under the customary international law are applied to matters of international tax law. This is particularly important in the light of rapidly evolving norms relating to tax avoidance. The paper takes the Indian case of retroactive tax legislation to demonstrate how tax policy may be constrained by the rights afforded to the foreign investor that are superior to those guaranteed under international tax and domestic law. Further, the paper reflects on whether the exclusion of tax-related disputes explicitly from investment agreements may not be enough.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"235 - 252"},"PeriodicalIF":0.5,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49562996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-01DOI: 10.1080/10192557.2022.2102587
L. Rubini
ABSTRACT The analysis of WTO law and the key disputes in ‘trade and tax’ field leads to interesting findings. The relationship between international trade law and domestic tax laws is not easy. First, the emerging picture is the difficulty of the trade regulatory framework and the jurisprudence to draw a clear line between what is permitted and what is not. Legal uncertainty is the word. This uncertainty has its root in the complexity of both domestic tax laws and the legal standards of trade law. Secondly, trade law often significantly impacts on governments’ sovereignty. In a globalized world, this is inevitable. Thirdly, there is an evolution in how trade has had to deal with taxation. The focus has shifted from the traditional cases of favouritism, discrimination and protectionism to more difficult issues connected to key challenges of our times – tax avoidance, level playing field, competitiveness, carbon leakage, the digitization of the economy. More recently, even national security has added to the mix. This complexity in the ‘trade and tax’ relationship raises fundamental questions about the limited role trade law can play in solving taxation issues. The article claims that trade law can only offer partial solutions to key tax issues. By nature, trade law is more suited to regulate specific instances where tax is used as a tool of protection rather than systemic problems arising from the differences in domestic taxation and the lack of established rules to regulate new phenomena like digital services, for which multilateral tax treaties are the first-best.
{"title":"Between sovereignty and complexity: the settlement of tax disputes by the world trade organization","authors":"L. Rubini","doi":"10.1080/10192557.2022.2102587","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102587","url":null,"abstract":"ABSTRACT The analysis of WTO law and the key disputes in ‘trade and tax’ field leads to interesting findings. The relationship between international trade law and domestic tax laws is not easy. First, the emerging picture is the difficulty of the trade regulatory framework and the jurisprudence to draw a clear line between what is permitted and what is not. Legal uncertainty is the word. This uncertainty has its root in the complexity of both domestic tax laws and the legal standards of trade law. Secondly, trade law often significantly impacts on governments’ sovereignty. In a globalized world, this is inevitable. Thirdly, there is an evolution in how trade has had to deal with taxation. The focus has shifted from the traditional cases of favouritism, discrimination and protectionism to more difficult issues connected to key challenges of our times – tax avoidance, level playing field, competitiveness, carbon leakage, the digitization of the economy. More recently, even national security has added to the mix. This complexity in the ‘trade and tax’ relationship raises fundamental questions about the limited role trade law can play in solving taxation issues. The article claims that trade law can only offer partial solutions to key tax issues. By nature, trade law is more suited to regulate specific instances where tax is used as a tool of protection rather than systemic problems arising from the differences in domestic taxation and the lack of established rules to regulate new phenomena like digital services, for which multilateral tax treaties are the first-best.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"204 - 218"},"PeriodicalIF":0.5,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45267687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-30DOI: 10.1080/10192557.2022.2102593
H. Mann
ABSTRACT This article analyzes the dispute settlement proposals contained in the October 2020 OECD Pillar One Blueprint. We concentrate on the actual proposals found in the Blueprint and analyse them against critical issues that are relevant to the development of public international law dispute settlement processes more broadly, fostering a better contextualization of the analysis. Invariable, these tax disputes arise from measures taken by governments, or responses to Base Erosion and Profit Shifting (BEPS) measures by companies. In some cases, the government measures reflect deep concerns over the lack of tax revenues from foreign investors. This focus on government action has been married to corporate-centred concepts of tax certainty, leading to a ‘tax certainty’ design in the Blueprint that risks distorting dispute settlement in international tax for many years to come. Fortunately, the proposals leave many issues to be resolved during the drafting process set to take place over 2021–2022. This means that the international tax law regime, especially in this moment of major reform, has an opportunity to open its thinking, and its integration, into the broader corpus of public international law, as trade and investment law have done before. A failure to do so risks putting its future credibility at risk.
{"title":"The expanding universe of international tax disputes: a principled analysis of the OECD international tax dispute settlement proposals","authors":"H. Mann","doi":"10.1080/10192557.2022.2102593","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102593","url":null,"abstract":"ABSTRACT This article analyzes the dispute settlement proposals contained in the October 2020 OECD Pillar One Blueprint. We concentrate on the actual proposals found in the Blueprint and analyse them against critical issues that are relevant to the development of public international law dispute settlement processes more broadly, fostering a better contextualization of the analysis. Invariable, these tax disputes arise from measures taken by governments, or responses to Base Erosion and Profit Shifting (BEPS) measures by companies. In some cases, the government measures reflect deep concerns over the lack of tax revenues from foreign investors. This focus on government action has been married to corporate-centred concepts of tax certainty, leading to a ‘tax certainty’ design in the Blueprint that risks distorting dispute settlement in international tax for many years to come. Fortunately, the proposals leave many issues to be resolved during the drafting process set to take place over 2021–2022. This means that the international tax law regime, especially in this moment of major reform, has an opportunity to open its thinking, and its integration, into the broader corpus of public international law, as trade and investment law have done before. A failure to do so risks putting its future credibility at risk.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"268 - 283"},"PeriodicalIF":0.5,"publicationDate":"2022-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47899137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-28DOI: 10.1080/10192557.2022.2102592
Ricardo García Antón, Toni Marzal
ABSTRACT This contribution considers the use of the principle of proportionality to review measures combatting international tax abuse (avoidance and evasion). Our claim is that proportionality, which tends to be viewed as the key analytical tool to balance tax equity against the interests of taxpayers, is ill-suited to the review of such measures. This we will demonstrate from a theoretical angle, but also through the analysis of the CJEU, international investment tribunals and WTO adjudicatory bodies: rather than balancing tax certainty against tax equity or focusing on the efficiency of the anti-tax abuse measures in the pursuit of substantive policy goals (the types of enquires normally associated with proportionality), what we observe is an assessment and gradual demarcation of the rightful territorial extent of the State’s taxation powers.
{"title":"Proportionality and the fight against international tax abuse: comparative analysis of judicial review in EU, international investment and WTO law","authors":"Ricardo García Antón, Toni Marzal","doi":"10.1080/10192557.2022.2102592","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102592","url":null,"abstract":"ABSTRACT This contribution considers the use of the principle of proportionality to review measures combatting international tax abuse (avoidance and evasion). Our claim is that proportionality, which tends to be viewed as the key analytical tool to balance tax equity against the interests of taxpayers, is ill-suited to the review of such measures. This we will demonstrate from a theoretical angle, but also through the analysis of the CJEU, international investment tribunals and WTO adjudicatory bodies: rather than balancing tax certainty against tax equity or focusing on the efficiency of the anti-tax abuse measures in the pursuit of substantive policy goals (the types of enquires normally associated with proportionality), what we observe is an assessment and gradual demarcation of the rightful territorial extent of the State’s taxation powers.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"253 - 267"},"PeriodicalIF":0.5,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41861845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-28DOI: 10.1080/10192557.2022.2102588
Prabhash Ranjan
ABSTRACT More and more countries are coordinating at the international level to implement taxation measures to counter the problem of tax avoidance by multinational corporations (MNCs). This has led to increasing internalization of taxation measures, which, in turn, will lead to greater normative dialogue between international taxation and other branches of public international law such as international investment law (IIL). This paper argues that MNCs and foreign investors have not shied from using the IIL framework to challenge sovereign taxation measures of States before investor-State dispute settlement (ISDS) tribunals. These challenges, part of the increasing judicialization of international tax measures, have generated a rich body of case law. While ISDS tribunals are generally deferential towards State’s sovereign right to tax, they clearly recognize certain limits on this sovereign power. ISDS tribunals have not hesitated from laying down principles where abuse of taxation powers or imposition of taxes that are not reasonable or proportionate have been held to be inconsistent with the country’s investment treaty obligations. Even carving-out taxation measures from the ambit of the investment treaty are no surety that an ISDS tribunal will not exercise jurisdiction over such tax measures especially when they are not exercised in a bona fide manner. As countries find ways to tax MNCs to counter the problem of tax avoidance, they should keep these important jurisprudential principles in mind.
{"title":"Investor-state dispute settlement and tax matters: limitations on state’s sovereign right to tax","authors":"Prabhash Ranjan","doi":"10.1080/10192557.2022.2102588","DOIUrl":"https://doi.org/10.1080/10192557.2022.2102588","url":null,"abstract":"ABSTRACT\u0000 More and more countries are coordinating at the international level to implement taxation measures to counter the problem of tax avoidance by multinational corporations (MNCs). This has led to increasing internalization of taxation measures, which, in turn, will lead to greater normative dialogue between international taxation and other branches of public international law such as international investment law (IIL). This paper argues that MNCs and foreign investors have not shied from using the IIL framework to challenge sovereign taxation measures of States before investor-State dispute settlement (ISDS) tribunals. These challenges, part of the increasing judicialization of international tax measures, have generated a rich body of case law. While ISDS tribunals are generally deferential towards State’s sovereign right to tax, they clearly recognize certain limits on this sovereign power. ISDS tribunals have not hesitated from laying down principles where abuse of taxation powers or imposition of taxes that are not reasonable or proportionate have been held to be inconsistent with the country’s investment treaty obligations. Even carving-out taxation measures from the ambit of the investment treaty are no surety that an ISDS tribunal will not exercise jurisdiction over such tax measures especially when they are not exercised in a bona fide manner. As countries find ways to tax MNCs to counter the problem of tax avoidance, they should keep these important jurisprudential principles in mind.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"219 - 234"},"PeriodicalIF":0.5,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48715305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10192557.2022.2073714
B. Gu, Chengjin Xu
ABSTRACT The relationship between the Board and management has been a key issue of corporate governance for Bretton Woods institutions, and there is no exception to the Asian Infrastructure Investment Bank (AIIB). A new multilateral development bank (MDB) derived from Bretton Woods, the AIIB is now the second largest after the World Bank by membership. The institution of a non-resident Board of Directors in the AIIB deviates from the practice of most leading MDBs, and it was designed to avoid two dilemmas that have long bewildered traditional MDBs: the dual position of the Board members, and the co-managerial issue between the Board and management. The arrangement of the non-resident Board requires that project approval authority be delegated from the Board to the President, and in parallel to such delegation, a robust oversight mechanism should be established with a view to holding the empowered President and management accountable. Efforts to craft an oversight mechanism were made initially in the Accountability Framework, and were completed in the Oversight Mechanism. As it strives for ‘appropriate separation of powers to ensure proper checks and balances’ between the Board and management, the oversight mechanism should not hinder the pragmatic management of the AIIB from serving the changing needs of its members.
{"title":"International organizations and corporate governance: the case of the AIIB","authors":"B. Gu, Chengjin Xu","doi":"10.1080/10192557.2022.2073714","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073714","url":null,"abstract":"ABSTRACT The relationship between the Board and management has been a key issue of corporate governance for Bretton Woods institutions, and there is no exception to the Asian Infrastructure Investment Bank (AIIB). A new multilateral development bank (MDB) derived from Bretton Woods, the AIIB is now the second largest after the World Bank by membership. The institution of a non-resident Board of Directors in the AIIB deviates from the practice of most leading MDBs, and it was designed to avoid two dilemmas that have long bewildered traditional MDBs: the dual position of the Board members, and the co-managerial issue between the Board and management. The arrangement of the non-resident Board requires that project approval authority be delegated from the Board to the President, and in parallel to such delegation, a robust oversight mechanism should be established with a view to holding the empowered President and management accountable. Efforts to craft an oversight mechanism were made initially in the Accountability Framework, and were completed in the Oversight Mechanism. As it strives for ‘appropriate separation of powers to ensure proper checks and balances’ between the Board and management, the oversight mechanism should not hinder the pragmatic management of the AIIB from serving the changing needs of its members.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"309 - 324"},"PeriodicalIF":0.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47147452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/10192557.2022.2085407
Wenhua Li, Z. Liao
ABSTRACT Asset or wealth management is a booming business in Mainland China. In a civil law system, how do Chinese law and Chinese courts deal with disputes arising out of an asset management relationship, in the absence of the branch of law of equity and trusts? The Chinese lawmakers, regulatory bodies, judges and asset management institutions are faced with challenging legal issues. Who is the owner of the assets under management? What is the nature of the relationship between the investor and the asset manager? Is an investor of an asset management product a consumer? This paper investigates the developments, the current position and the possible future of the law and practice concerning the legal issues that may arise out of the investor-manager relationship in the asset management businesses in Mainland China. The paper would also shed light on how Chinese law and courts deal with issues that would call for the intervention of the principles of equity and trusts in common law jurisdictions.
{"title":"Finding equity without the law of equity: asset management, fiduciary duty and financial consumer protection in China","authors":"Wenhua Li, Z. Liao","doi":"10.1080/10192557.2022.2085407","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085407","url":null,"abstract":"ABSTRACT Asset or wealth management is a booming business in Mainland China. In a civil law system, how do Chinese law and Chinese courts deal with disputes arising out of an asset management relationship, in the absence of the branch of law of equity and trusts? The Chinese lawmakers, regulatory bodies, judges and asset management institutions are faced with challenging legal issues. Who is the owner of the assets under management? What is the nature of the relationship between the investor and the asset manager? Is an investor of an asset management product a consumer? This paper investigates the developments, the current position and the possible future of the law and practice concerning the legal issues that may arise out of the investor-manager relationship in the asset management businesses in Mainland China. The paper would also shed light on how Chinese law and courts deal with issues that would call for the intervention of the principles of equity and trusts in common law jurisdictions.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"221 - 241"},"PeriodicalIF":0.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41699755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-22DOI: 10.1080/10192557.2022.2085413
J. Marcoux, Julien Sylvestre-Fleury
ABSTRACT The Belt and Road Initiative is a vast infrastructure project that extensively relies on public procurement contracts, which are often secured by Chinese state-owned enterprises. Amidst the various consequences that the initiative entails on global governance, this article explores the Belt and Road Initiative’s impact on the development of international norms that have recently emerged beyond the multilateral framework to address state-owned enterprises and government procurement. By combining international relations theory and international economic law, the article argues that the implementation of the Belt and Road Initiative constitutes a contestation of international norms that do not align with China’s state-directed economic model. After recalling key elements of norm contestation, it addresses the elaboration of disciplines pertaining to state-owned enterprises and government procurement at the regional and plurilateral levels. It then demonstrates that China – through its discourse, the implementation of Belt and Road Initiative projects and reactions from other states – can be considered as a ‘norm antipreneur’ that challenges these international norms.
{"title":"China’s contestation of international norms on state-owned enterprises and government procurement through the Belt and Road Initiative","authors":"J. Marcoux, Julien Sylvestre-Fleury","doi":"10.1080/10192557.2022.2085413","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085413","url":null,"abstract":"ABSTRACT The Belt and Road Initiative is a vast infrastructure project that extensively relies on public procurement contracts, which are often secured by Chinese state-owned enterprises. Amidst the various consequences that the initiative entails on global governance, this article explores the Belt and Road Initiative’s impact on the development of international norms that have recently emerged beyond the multilateral framework to address state-owned enterprises and government procurement. By combining international relations theory and international economic law, the article argues that the implementation of the Belt and Road Initiative constitutes a contestation of international norms that do not align with China’s state-directed economic model. After recalling key elements of norm contestation, it addresses the elaboration of disciplines pertaining to state-owned enterprises and government procurement at the regional and plurilateral levels. It then demonstrates that China – through its discourse, the implementation of Belt and Road Initiative projects and reactions from other states – can be considered as a ‘norm antipreneur’ that challenges these international norms.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"325 - 347"},"PeriodicalIF":0.5,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43409611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-16DOI: 10.1080/10192557.2022.2085414
P. Mavroidis, A. Sapir
ABSTRACT This article examines the EU-China Comprehensive Agreement on Investment (CAI) in the light of investment chapters contained in trade agreements that China and the EU have signed (separately obviously) with two countries: the Republic of Korea, like most EU countries, a member of the Organization for Economic Co-operation and Development, and Vietnam, a developing country and a nonmarket economy, where, like in China, state-owned enterprises play a substantial role. We find that the CAI innovates compared to these earlier trade agreements in some important dimensions, especially as far as the commitments accepted by China are concerned. Hence, the bilateral EU-China investment agreement could be useful for a future multilateral agreement in areas where current WTO rules do not provide sufficient discipline for countries like China.
{"title":"What is so special about CAI?","authors":"P. Mavroidis, A. Sapir","doi":"10.1080/10192557.2022.2085414","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085414","url":null,"abstract":"ABSTRACT This article examines the EU-China Comprehensive Agreement on Investment (CAI) in the light of investment chapters contained in trade agreements that China and the EU have signed (separately obviously) with two countries: the Republic of Korea, like most EU countries, a member of the Organization for Economic Co-operation and Development, and Vietnam, a developing country and a nonmarket economy, where, like in China, state-owned enterprises play a substantial role. We find that the CAI innovates compared to these earlier trade agreements in some important dimensions, especially as far as the commitments accepted by China are concerned. Hence, the bilateral EU-China investment agreement could be useful for a future multilateral agreement in areas where current WTO rules do not provide sufficient discipline for countries like China.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"348 - 366"},"PeriodicalIF":0.5,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42520027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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