Towards a Fourth Generation of Chinese Treaty Practice

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.