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Author: Julien Chaisse

Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilising inward foreign direct investment (fdi) remains unchanged to date: to assist the readjustment of China’s economy; to coordinate its modernisation programs; and to improve its quality of life. With the 1997 launch of the ‘going global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (soes). In order to accommodate inward and outward fdi, China’s participation in the international investment regime has underpinned its efforts to join multilateral investment-related legal instruments and conclude international investment agreements (iias). Because of its bitter history of signing ‘unequal treaties’, unlike other countries China’s participation in the international investment regime did not start with the conclusion of Friendship, Commerce and Navigation (fcn) treaties. Instead, it started by selectively concluding bilateral investment treaties (bits) with developed countries (major capital-exporting states to China at that time), signing its first bit with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalising its iias regime and balancing the duties and benefits associated with iias. This chapter posits that China is deploying its international investment policy on three levels, namely, bilateral (in the form of bits), regional (in the form of free trade agreements including investment matters), and global (such as the recent ‘belt and road’ initiative and G20 participation). Against the backdrop of domestic law reforms, the chapter explores each of these tracks with regard to the level of investment protection and liberalisation with the objective of identifying the extent to which China has been coherent in its policy-making.

In: International Investment Treaties and Arbitration Across Asia
Author: Julien Chaisse

Abstract

This article analyses the impact of China and, even more importantly, Chinese individuals on the governance of domain names, which form the fundamental structure of the Internet commons. Many commons exist in physical space, but increasingly, commons in digital space will be overexploited, and that is why the Internet and its interconnections, made of an unlimited number of domain names, need to be carefully regulated. Internet domain names are true economic assets which raise important legal issues in China and in the rest of the world. This article reviews the key developments in case law over the last decade with a focus on China. Interestingly, at least 35% of domain name disputes involve a Chinese responding party. The article shows that, despite being a major provider of users, China was never involved in the regulation and design of the Internet. In fact, China has rather emerged as a rule-shaker, given the large involvement of Chinese cybersquatters in the domain names case law. Fundamentally, this article shows that there is a tension between Internet control in China and global interconnection, which has had direct consequences for China’s engagement with ICANN and other institutions in charge of DNS globally.

In: International Community Law Review

In September 2020, an ICSID tribunal rendered its decision on the Respondent’s Jurisdictional Objections in Raiffeisen v Croatia, two years after the ICSID Chairman of the Administrative Council rejected Croatia’s application to disqualify Dr. Stanimir Alexandrov as a member of the tribunal. The decision on the Respondent’s Jurisdictional Objections concerns the interpretation of the Austria- Croatia bit and its compatibility with the EU acquis. This case- note addresses both the decision on the Respondent’s Jurisdictional Objections and the Chairman of the Administrative Council’s decision on the proposed disqualification of Dr. Alexandrov. In so doing, it focuses on three key issues: the selection and conduct of the arbitrator that gave rise to disqualification, and the role played by ICSID in the process; the interrelation between investment treaties, EU Law, and EU Member States; and the implementation of the vclt for termination of treaties covering similar subject matter.

In: European Investment Law and Arbitration Review Online
International Investment Treaties and Arbitration Across Asia brings together leading academics and practitioners to examine whether and how the Asian region has or may become a significant ‘rule maker’ in contemporary international investment law and dispute resolution. The editors introduce FDI trends and regulations, investment treaties and arbitration across Asia. Authors add country studies for the ten member states of the Association of Southeast Asian Nations as well as an overview of ASEAN treaties, or examine other potential ‘middle powers’ (Korea, Australia and New Zealand collectively) and the emerging ‘big players’ (China, Japan and India). Two early chapters present econometric studies of treaty impact on FDI flows, in aggregate as well as for Thailand, while two concluding chapters offer other normative and forward-looking perspectives.

Brunei Darussalam is a small open economy gifted with important oil resources which make it the second richest Southeast Asian economy after Singapore. Like all resource-rich countries, its main challenge is to diversify its activities to prepare for a post-oil sustainable economy. Attracting foreign direct investment in new sectors will be an important element of success in this endeavour. The legal framework governing investment will therefore be critical to foreign investors. Although the experience of Brunei in international investment treaties negotiations is rather limited from a quantitative point of view, the country has signed a number of treaties with partners such as China, Korea, Japan, and the other asean countries. This Chapter reviews the existing treaties with the object of assessing Brunei’s contribution to international investment policy in Asia and explaining Brunei’s trajectory in terms of investment rule-making, fdi trends and potential disputes.

In: International Investment Treaties and Arbitration Across Asia
In: International Investment Treaties and Arbitration Across Asia
In: International Investment Treaties and Arbitration Across Asia
In: International Investment Treaties and Arbitration Across Asia
In: International Investment Treaties and Arbitration Across Asia