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Introduction – CAI’s Contribution to International Investment Law: European, Chinese, and Global Perspectives

In: The Journal of World Investment & Trade
Authors:
Julien Chaisse School of Law, City University of Hong Kong Hong Kong SAR

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Matthieu Burnay School of Law, Queen Mary University London United Kingdom

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Abstract

The European Union and the People’s Republic of China ‘in principle’ concluded the Comprehensive Agreement on Investment (CAI). Considering that the agreement has been passed in the backdrop of dynamic multi-fora trade and investment policy-making practices, both parties’ negotiations at the bilateral, multilateral and plurilateral levels require testing. This is important to understand whether the growth of bilateral and regional agreements and the fragmentation of international economic law are enablers or roadblocks to further liberalisation of international trade and investment. This Special Issue shall analyse the CAI and argue in favour of the importance of this development. It will examine the current hyper-politicisation and geo-politicisation of investment treaties to situate the symbolic importance of the CAI. In lieu of the uncertainty of final ratification of CAI and sanctions imposed by China, this article (and the whole Special Issue it introduces) are a timely academic contribution that shall trace its scope and potential effectiveness and enable much-needed discourse.

Abstract

The European Union and the People’s Republic of China ‘in principle’ concluded the Comprehensive Agreement on Investment (CAI). Considering that the agreement has been passed in the backdrop of dynamic multi-fora trade and investment policy-making practices, both parties’ negotiations at the bilateral, multilateral and plurilateral levels require testing. This is important to understand whether the growth of bilateral and regional agreements and the fragmentation of international economic law are enablers or roadblocks to further liberalisation of international trade and investment. This Special Issue shall analyse the CAI and argue in favour of the importance of this development. It will examine the current hyper-politicisation and geo-politicisation of investment treaties to situate the symbolic importance of the CAI. In lieu of the uncertainty of final ratification of CAI and sanctions imposed by China, this article (and the whole Special Issue it introduces) are a timely academic contribution that shall trace its scope and potential effectiveness and enable much-needed discourse.

1 Introduction

In December 2020, the European Union and the People’s Republic of China (PRC) officially concluded, ‘in principle’, a Comprehensive Agreement on Investment (CAI).1 The European Commission’s President Ursula von der Leyen described this event as an ‘important landmark in our relationship with China and for our values-based trade agenda’.2 On 20 May 2021, the European Parliament (EP) voted to suspend these new treaty ratification efforts.3

The background to this agreement requires a brief review of the PRC’s and the EU’s investment rule-making practices. All major trading blocs/countries now pursue what might be called multi-fora trade and investment policies. These include continued support for multilateral trade negotiations in the World Trade Organisation (WTO), efforts to pursue issues at the plurilateral level (i.e. among like-minded trading partners), the promotion of regional agreements (or, as in the case of the EU, external policy region-to-region negotiations), bilateral agreements (in the case of the EU: association agreements, free trade agreements (FTAs) or other forms of cooperation including regulatory cooperation/mutual recognition agreements) and unilateral agreements, such as generalised scheme of preferences (GSPs), unilateral liberalisation or use of commercial instruments. The acceleration of regional and free trade agreements in recent years has generated considerable literature on why States (and the EU) opt for one level of negotiation over others.4 Against this background, an emerging body of literature analyses the extent to which the growth of bilateral and regional agreements – and the very fragmentation of international economic law – would constitute a building or a stumbling block for the further liberalisation of international trade and investment.5

With respect to the law and regulation of foreign direct investment (FDI) in the PRC and its recent evolution, in view of the adoption of China’s new Foreign Direct Investment Law,6 substantial literature currently exists.7 With respect to the bilateral investment treaty (BIT) program of the PRC in general as well, there have been several studies looking at the evolution of Chinese investment treaty-making practice.8 China’s investment treaty-making practice is to be situated against the background of China’s engagement with the international legal order9 and how its growing engagement with global governance has been affected by the country’s transition from a developing country to a capital-exporting one.10 Even on the European side, there is a base of relevant research.11 Until December 2009 and the coming into force of the Treaty of Lisbon, a variety of relevant competencies in the field of foreign investment regulation existed among Member States of the EU.12 Now that this competence has largely been transferred, the EU is developing its own investment policy.13 At the bilateral level, research has been conducted on PRC-EU trade and investment relations,14 with some publications examining ongoing negotiations of the CAI at the time.15

Against this background, this Special Issue aims to provide a comprehensive and in-depth analysis of the CAI. This will provide much-needed context to the agreement that was concluded in principle in December 2020. It will be argued that this agreement constitutes a watershed development for both the bilateral investment relationship between the EU and China and the global investment regime. In fact, the content of the agreement provides an important indication of recent evolutions in the area of international investment law, which is both a fast developing and also an increasingly contested area of international law.

In addition, this Special Issue will shed light on the hyper-politicisation and geo-politicisation of investment treaties. Not only did the conclusion of the CAI constitute a strong symbolic and political development amid the ongoing trade war between China and the United States, but the decision of the European Parliament to ‘freeze’ the ratification of the CAI in March 2021 also testifies to the need to situate the CAI in its broader political and geopolitical context. Despite the self-confidence (not to say self-congratulatory) mood that permeated the December 2020 announcement, the future of the CAI is now very much uncertain following the adoption of a motion by the European Parliament on ‘Chinese Countersanctions on EU Entities and MEPs and MPs’.16 The Resolution came as a response to sanctions imposed by China against the EP Subcommittee on Human Rights and other European entities and officials in March 2021.17 In this Resolution passed by 599 Members of the European Parliament (MEPs) and with 30 votes against and 58 abstentions – the European Parliament decided to freeze the consideration and ratification of the CAI and called the European Commission to use the CAI as leverage to address human rights violations in China.18 As such, it is now understood that the ratification of the CAI by the EU will remain unlikely as long as the Chinese sanctions are not lifted.

2 A Comparative and ‘In Context’ Analysis of the CAI

Against the backdrop of changes in the global (im)balance of power and the increased multipolarity in international affairs, the comparative study of international law has (re-)emerged as an important paradigm in legal scholarship.19 The comparative study of international law – or ‘the idea that international law could be approached differently depending on the culture of each country, society, or peoples’20 – appears now as a theoretical and practical response to the contestation of the international legal order(s) and the global governance system in which it is embedded.21 In fact, both the theory and practice of international law require ‘to compare types of international legal consciousness’.22 Far from a cultural relativist approach, the comparative approach to international law we want to endorse in this Special Issue is the one that calls for sovereignism/particularism to be internationalised and universalism to be contextualised.23 On the one hand, the ‘national’ is no longer immune to international law and, in particular, in the area of foreign investment governance. This is an area that deeply transcends the territorially defined nation-State. On the other hand, one should no longer take it for granted that the international (not to say the universal) nature of international law can simply disregard the regional, national, or local conditions of where it is to be applied.

2.1 Comparative and International Investment Law

The appeal of a comparative approach is particularly prominent in the area of international investment law.24 From the very early days of international investment law, the condition of States as home or host States to foreign investments has very much shaped their perspective on international investment law. At the time of colonisation, foreign investment law primarily served the expansion of European trade and investments despite claims of universality.25 With the subsequent occurrence of decolonisation, the internationalisation of State contracts was largely criticised by countries of the Global South for being in breach of their sovereign right to regulate, in general, and also to protect their permanent sovereignty over natural resources in particular.26 Nowadays, one also witnesses a sharp contrast between host States and home States in terms of their respective views on international investment law. It is, in fact, within-host States that one does find the most radical attempts to protect the rights of the State to regulate, whether it is through the adoption of a more restrictive/enterprise-based definition of investment or the removal of contentious provisions such as most favoured nation (MFN) clauses in international investment agreements (IIAs).

China and the EU do appear to provide a case in point of two very different experiences and engagement with international law in general and international investment law in particular. On the one hand, the European integration process has been recognised as being ‘based on the rule of law’ since times immemorial.27 From the very early days of the European project in the aftermath of the Second World War, the incremental/step-by-step integration process has been anchored in a succession of treaty reforms, which have both deepened and widened the scope of what the EU is and what it ought to be. Walter Hallstein, the first President of the European Commission, described the Community as a ‘community of law – because it serves to realise the idea of law’.28 Externally, the European international actorness is based on a ‘variable and multi-dimensional presence’,29 with the EU being more active and influential in certain areas of global governance and quieter and less visible in others. This is particularly clear if one is to compare the central role played by the EU as a full-fledged member of the World Trade Organization (WTO),30 on the one hand, and the limited ‘enhanced observer status’ that the EU has (painfully) acquired in the United Nations on the other.31 Nevertheless, across all areas of global governance, the very possibility for the EU to act internationally is deeply grounded on the existence of a rules-based international order.32 Strengthening’ rules-based multilateralism’ therefore constitutes both a condition and a strategic objective of the EU’s external action.33

In the area of foreign investment governance, it is only with the adoption of the Lisbon Treaty that the power to legislate and negotiate international agreements with third States was transferred from the Member States (MS) to the EU. Interestingly, it became quickly clear that the EU would significantly depart from its own MS investment treaty practice and come up with yet another generation of investment agreements.34 The EU’s investment policy is now deeply influenced by a commitment to reform the traditional investor-State dispute settlement (ISDS) regime to make it more transparent and legitimate;35 the endorsement of a comprehensive approach to a foreign investment law that is anchored in the foundational values of the EU, including the rule of law, human rights, and sustainability;36 and also increase a commitment to protect the EU’s strategic infrastructure and technology through investment screening.37

On the other hand, China’s own experience and engagement with international law tell us a very different story, which has as many facets as there have been dramatic shifts in the status and role of the PRC on the international stage since its creation in 1949.38 Very far from the revolutionary mindset under Mao Zedong, or the ‘low-profile’ foreign policy under Deng Xiaoping, Xi Jinping’s ‘New Era’ is characterised by real activism aimed to make the international legal order better fit to serve China’s own interests.39 More than any other great powers, China’s (re-)emergence on the international stage has been conditioned but most significantly enabled by China being a member of an international order whose institutions and norms it had not instigated. The massive impact China’s accession to the WTO in 2001 has had on the country’s economic development constitutes probably the most visible illustration thereof. In recent years, China has become increasingly active in shaping and shaking international norms, including the mechanisms aimed at resolving disputes at an international level.40 Through the establishment of the Belt and Road Initiative (BRI), China has attempted, for the first time, to export its own development model and, therefore, to propose a different way to engage with globalisation and the legal dimension thereof.41 The legal dimension of Chinese globalisation has been described as ‘multi-layered’ (i.e. involving the local, national, interstate, and global level),42 primarily based on soft law instruments,43 and relying on a set of ‘China-centred’ dispute resolution mechanisms.44

It is obvious that all these developments have massively impacted how China engages with international investment law.45 China’s ‘opening up’ and ‘going global’ policy have conducted China to conclude agreements at both bilateral and multilateral levels to accommodate inward and foreign direct investments.46 These agreements have required some kind of leadership, not least in view of the tension that can exist between China’s ‘offensive interests as a supplier of FDI’ and China’s defensive interests as a recipient of FDI.47 As a response to perceived foreign attempts to ‘contain’ or ‘isolate’ China, it has recently been very active in negotiating large-scale agreements such as the Regional Comprehensive Economic Partnership (RCEP) but also more ad-hoc bilateral agreements in the context of the BRI. In that process, a number of priorities become particularly obvious in China’s engagement with the international investment regime: the expansion of Chinese law and institutions internationally;48 the preservation and enhancement of Chinese State-Owned Enterprises’ access to foreign markets;49 as well as the simple conclusion of major international trade and investment deals in a context of growing antagonism and tensions with the United States.

2.2 The Growing ‘Politicisation’ and ‘Geo-Politicisation’ of Foreign Investment

Looking at how the EU and China engage with international law, in general, and international investment law, in particular, provides a good picture not only of the current state but also of the many challenges that pertain to our increasingly globalised international legal landscape. At a time when international investment law appears as one of the fastest evolving areas of international law, the CAI will constitute a milestone. This will be not only in terms of the bilateral relationship between the EU and China but also at a multilateral level, not least in view of the two actors’ active involvement in the ongoing discussions on the future of international investment law at the UN level.50 This Special Issue will discuss the meaning and importance of the CAI for the EU, China, and the rest of the world. It will also take due account of what has been described as the growing ‘politicisation’ and ‘geo-politicisation’ of foreign investments. The negotiations of the CAI, as well as the rocky road towards ratification, are indeed shaped by the overall political and geopolitical contexts in which they take place.

By politicisation, we refer here to the ‘increase in a polarisation of opinions, interests or values and the extent to which they are publicly advanced towards the process of policy formulation within the EU’.51 The politicisation of foreign investments is to be read against the background of the legitimacy crisis of the global investment regime – a regime that is perceived as fostering most of the criticisms against globalisation. In his book The Trouble with Foreign Investor Protection, Van Harten refers to ISDS treaties as being ‘flawed fundamentally because they firmly institute wealth-based inequality under international law’.52 While the substance of those criticisms would ideally require more empirical research,53 it is clear that they have very much fed into a growing contestation of international investment agreements, in general, and the investor-State dispute settlement mechanism in particular. This contestation became particularly obvious at the time of the negotiation of the Transatlantic Trade and Investment Partnership (TTIP)54 and the EU-Canada Comprehensive Economic and Trade Agreement (CETA).55 In this line, the Namur Declaration – released as part of the contestation against CETA – called for the EU to ‘respect democratic procedures’, ‘comply with socio-economic, sanitary, and environmental legislations’, as well as ‘guarantee public interests in the dispute resolution mechanism’ in all its international trade and investment agreements.56 More than a dynamic of ‘politicisation’, Meunier and Nicolaidis refer to the ‘geo-politicisation’ of trade and investment politics: ‘Call it the China syndrome or the Trump effect, tariffs, retaliatory measures and counter-retaliation have featured prominently in the news in 2018, and the rhetoric of trade negotiations has given way to the language of economic battlefields and trade warfare.’57 This geo-politicisation has largely been driven by the economic restructuring that has been at play since the 2008 crisis and has now only been reinforced by the Covid-19 pandemic.58

It is argued here that four main factors have contributed to the politicisation and geo-politicisation of the CAI. These factors have somehow been so influential that they have overshadowed even the economic improvements brought about by the CAI. These included, among others, innovative rules in the areas of subsidies, State-owned enterprises, technology transfer, and transparency.59

2.2.1 Suspicion and Fear Against Chinese Investments

The expansion of Chinese outward FDI in Europe has been met with a high level of suspicion and fear of a growing economic dependency of some EU Member States on China.60 This suspicion and fear have only been reinforced by the establishment of regional platforms such as the 16+1.61 In addition to contributing to China’s overall economic influence in Europe, this growing dependency would also come at the cost of compromises on the EU’s fundamental values. Reference is often made here to the fate of an EU Resolution on China’s human rights record that was due to be submitted to the UN Human Rights Council and was ultimately vetoed by Greece against the background of significant Chinese investments in the Greek economy.62 In an increasingly confrontational international landscape in Europe and beyond, China’s attempts to shape its image and reassure its growing economic presence overseas have largely proven to be unsuccessful.63

2.2.2 Confrontation Between ‘Liberal’ and ‘Authoritarian’ Conceptions of International Law

The politicisation and geo-politicisation of the CAI are also to be read against the background of the increasing divide between the ‘liberal’ and ‘authoritarian’ conceptions of international law. What is at stake here is the possibility for foreign investments to thrive (thanks to the adoption of IIAs) despite the opposition between competing conceptions of international law. China actively participates in the contestation of the institutional and normative foundations of the liberal international order, which has now been in a state of crisis for many years.64 It is now very clear that China is no longer willing to act as a simple ‘norm-taker’ in global governance but is now ready to ‘make’ and even ‘shake’ international institutions and norms.65 As a result, we witness the emergence of an ‘authoritarian’ version of international law, which not only silences criticisms against China’s weak compliance records with some areas of international law but also facilitates the promotion of illiberal policies.66

2.2.3 Coherence versus Compartmentalisation

The ‘in principle’ conclusion of the CAI has been very much perceived as a ‘form of free-riding’ of the EU in a context of growing tensions between China and its regional and global competitors.67 In the facts, it was difficult, from the outside, to reconcile the EU’s identification of China as a ‘systemic rival’,68 with the imposition of sanctions against four officials of the Xinjiang Uighur Autonomous Region (XUAR),69 and the conclusion of an ambitious investment agreement such as the CAI. Internally, the same factors have questioned the coherence of the EU’s engagement with China, which is a legal obligation included in Article 21 of the Treaty of the European Union (TEU). These apparent contradictions testify to the EU’s difficulty to reconcile the fulfilment of its (economic) interests with the promotion and protection of its (political) values. The real question here, from a European perspective, relates to the extent to which different policies can be compartmentalised; whether FDI liberalisation with China can happen despite the overall deterioration of China’s human rights records.70 The decision of the European Parliament to freeze the ratification of the agreement has clearly highlighted that those issue areas can hardly be considered independently.

2.2.4 Competition for Normative Leadership in Global Economic Governance

More than foreign investment flows themselves, it is the ability to shape the rules and procedures governing foreign investments which will largely determine the future leadership in global investment governance. The success of the EU to establish itself as a ‘market power’71 has for long been recognised thanks to the ability of the EU to adopt legislation and regulation that would ultimately shape/Europeanise global standards. This so-called ‘Brussels effect’72 is now increasingly in competition with what some have already called in the area of data governance as the ‘Beijing effect’.73 With the global investment regime facing a major legitimacy crisis and a strong appeal for reforms (see above), there is very much competition between important stakeholders (i.e. the EU and China) to determine its future.

3 Transversal Issues and Research Questions

Against this background, this Special Issue addresses three main transversal issues (CAI scope, quality, and inclusivity, EU and China leadership in the global trade & investment system, and the CAI systemic implications) that will irrigate each of the seven articles.

3.1 Scope, Quality, and Inclusivity of the Comprehensive Agreement on Investment

The CAI is a key and timely development in the investment treaty practices of both the EU and China. Within this backdrop of important and deep geopolitical ramifications, an important indicator of the features of the CAI would likely warrant an examination of its adherence to or deviation from previous treaty practice. Additionally, each clause within the CAI has been inserted in a manner accommodating different objectives and negotiating styles. This makes each addition and omission within the CAI an important research indicator. The following two sub-questions provide greater clarity on the potential lens that can be adapted to analyse the scope of the CAI.

3.1.1 To What Extent Does the CAI Crystallise the Position of Investment Treaty Relations Between China and EU Member States?

Both the PRC and the EU are global leaders in the negotiation and conclusion of BITs. The PRC is the world’s most active BIT-making State with 145 BITs in force at the end of 2020, twenty-five of which are with EU member States. On the EU’s side, EU member States have collectively entered into nearly half of BITs existing worldwide. While BITs, as a general matter, display a certain consistency from treaty to treaty, State treaty-making practice has evolved over the past decades.74 Thus, within China’s BITs, for example, there is a considerable variation of rights and obligations, often depending upon when a particular treaty was concluded.75 Even within the BITs currently in force between China and EU Member States, there is significant variation. In order to ascertain the value of the CAI, the Special Issue will analyse the existing portfolio of treaties between the EU Member States and the PRC with respect to key issues such as market access, expropriation, State-owned enterprises, etc. and ascertain the extent to which the CAI crystallises or departs from previous treaty practices.

3.1.2 What Is Included and What Has Been Left Out in the CAI?

The primary driver for the PRC and the EU to enter into negotiations to conclude an international investment treaty is the promise of an increase in foreign direct investments.76 While investment treaties differ in their particulars, as a general matter, such treaties serve a function of liberalising investment flows between States. In addition, investment treaties increasingly seek to strike a good balance between investor protection and the right of States to regulate.77 Enhancing market access while establishing the adequate level of protection for human rights, labour rights, and the environment were a central challenge for the CAI negotiations, not least in view of the historical difficulties encountered by the EU to promote the values enshrined in Article 21 of the Treaty of Functioning of the European Union (TFEU) in its bilateral relationship with China.78 Concluding a BIT between the PRC and the EU did require coordination and agreement among the positions of States (the EU Member States and China) of differing legal, cultural, political and economic traditions. In certain areas, because of shared interest or historically similar treaty-making practices, agreement on key issues is likely to exist at the outset of negotiations. In other areas, differences in negotiating objectives and/or the treaty-making approach made an agreement on the text difficult. This Special Issue will provide an analysis identifying these areas of agreement and disagreement and explain how they affected the drafting of CAI.

3.2 European Union and China Leadership in the Global Trade & Investment System

The conclusion of the CAI must be examined as a major leadership-centric development in the global trade and investment system. The CAI satisfies key strategic objectives for the EU and PRC. For the EU, the CAI is an important step towards replacing existing BITs in force between the PRC and the individual EU Member States. Thus, it is a watershed event for the establishment of exclusive competence of the EU. On the other hand, China’s key interests as a capital-importing and exporting economy were to balance its internal obligations and regulatory capacity towards foreign investors with the possible protection accorded to Chinese foreign investors in the EU. Thus, assessing the extent to which the two parties have been able to ensure the inclusion of these core objectives of their investment treaty policy into the CAI will determine its overall impact on international investment law. In this connection, the articles discuss the main aspects of both the EU’s and China’s investment policies.

3.2.1 What Are the Key Features of the Emerging European Union Investment Treaty Policy Which Are Crystallised in the CAI?

For the EU, the negotiation of a BIT with the PRC comes at a singular moment of constitutional development. As of December 2009, and the entry into force of the TFEU, exclusive competence for the negotiation and conclusion of BITs has been transferred from the EU Member States to the EU itself. This means that the negotiation of CAI entails the replacement of numerous existing BITs currently in force between the PRC and the individual EU Member States.79 The consequences of this (r)evolution in EU investment treaty-making practice are only gradually being revealed in official documents from the EU.80 Against this background, the Special Issue will analyse the experience of the negotiations and the terms of the CAI as well as their impact on the way in which the EU coordinates its investment treaty policy and negotiates investment treaties on behalf of its Member States.

3.2.2 What Are the Key Features of China’s Current Investment Treaty Policy?

The PRC stands in a particular position both as the leading capital-importing economy and as an emerging leader in capital exports. While it has been the primary developing country recipient of foreign direct investment for the past decade, it’s ‘going out’ strategy has now also contributed to the transformation of China into a capital exporter developing country.81 In this area, too, China ranks amongst the third highest in the world. From this dual perspective, contemporary China’s interests lie in providing substantive protection for its investors abroad as well as opening up new investment opportunities. This Special Issue will analyse how China undertakes to consolidate international obligations and internal reforms that are conducive to opening up the domestic market and creating a stable business environment. Coping up with the rapidly evolving nature of the international investment law system and reaping the benefits of international agreements was a primary objective for China during CAI negotiations. However, an important simultaneous concern was also ensuring domestic regulatory capacity so as to sustain its growing economy in the long run. Thus, they need to be assessed in greater detail.

3.3 Systemic Implications: Convergence and Divergence in International Economic Law and Politics

In a seminal article, Kurtz and Cho analyse the convergence and divergence in international economic law and politics.82 The point of convergence is that both BITs and the WTO try to balance market access commitments and competing social concerns (public health, security etc.). Kurtz and Cho analyse the TRIMS Agreement, even-handedness under Article 2.1 of the TBT Agreement, and the market access obligations under the GATS to show this convergence. This theoretical framework is highly relevant to the CAI because there are several points of convergence between the EU-China CAI, such as: 1) China’s human rights policy (its social concerns) is acting as a barrier to the successful conclusion of an investment treaty. 2) Market access regulations – The CAI prescribes that China does not mandate technology transfer in all EU firms which invest in China. Forced tech transfer has acted as a barrier to market access in trade. 3) WTO plus obligations of notifying and making publicly available any subsidy China gives to its companies.

The CAI appears to be at the centre of convergence and divergence of international economic law and politics. While it is an important multilateral initiative, both the EU and PRC have been taking several steps towards the establishment of unilateral economic law in a bid to re-assert their sovereign regulatory powers. Thus, the CAI must be examined at the centre of this apparent contradiction to determine its systemic implications for the long-term future of global economic governance. Another striking feature of the CAI is its ability to blur the distinction between trade and investment law by expanding the scope of the agreement. Considering that this consolidates the fragmented state of international economic law currently, it becomes important to study its role in increasing the interactions and interdependence between trade and investment law to reform the transnational legal order. The Special Issue also pays attention to the tensions between bilateralism and multilateralism and the debate on the fragmentation and constitutionalisation of international economic law.

3.3.1 How to Reconcile Bilateralism and Multilateralism of the International Economic Regime with New Forms of Unilateral Economic Law?

The international economic regime has entered a new phase of reassertion of sovereignty by States.83 While States continue to show respect for the values of international (economic) law, the institutionalisation of these values has devolved from the international (initially, to the regional) to the domestic level of governance. A new form of unilateral economic law is thus gaining importance in the development of international and domestic law and institutions. However, it remains largely understudied. The Special Issue will reflect on the concomitant conclusion of the CAI and the adoption of a number of instruments that have the potential to erode their bilateral and international commitments.84 While China has recently reformed its foreign investment law regime,85 it has also strengthened its foreign investment security review mechanism86 and adopted an Anti-Foreign Sanctions Law,87 which allows for countermeasures to be adopted against a wide range of (economic) actors when China’s interests are threatened.88 Parallelly, the EU is developing a ‘toolbox’ for dealing with China, which also includes the WTO regime, a framework governing foreign investments screening,89 sanctions,90 and regulation to rid the supply chain of forced labour which is being prepared by the EU on the basis on a few member States’ legislations.91

3.3.2 What Does CAI Tell Us About the Fragmentation and Constitutionalisation of International Economic Law?

In terms of substance, the CAI is a new treaty that further contributes to blurring the lines between trade and investment law.92 Several matters covered by the CAI used to be found in trade agreements, including market access for services, labour standards, and environment provisions. In the past, trade agreements (i.e. Free Trade Agreements) such as North American Free Trade Agreement (NAFTA), Association of South East Asian Nations (ASEAN), CETA etc., expanded to cover investment matters. Here, it is a reverse scenario: between China and the EU, the investment pact is not limited to ‘traditional’ investment issues. Instead, the CAI expands to new issues. Against this background, the Special Issue will investigate how the CAI contributes to the interactions (i.e. competition and collaboration) between the global trade and investment regimes that are currently understood as transnational legal orders.93 It will establish the extent to which these multi-level interactions contribute to the emergence of constitutional principles in global economic governance.94

4 Conclusion and Outline of the Special Issue

This Special Issue focuses on an agreement that has been concluded in principle but whose future remains uncertain. It, therefore, brings together scholars and practitioners who do not only take into account the negotiations of the CAI, the agreement as it stands, but also all the pitfalls on the rocky road towards the ratification and implementation of the CAI. While the Special Issue brings together experts with a substantive track record in the study of European and Chinese engagement with international investment law, the approach remains truly global as the Special Issue will attempt to unfold the implications of the CAI for the global investment regime. Finally, the Special Issue is the fruit of an ongoing conversation between experts who – for a number of them – have worked together in the context of the Asia-Pacific FDI Network and the Jean Monnet Network on EU-China Legal and Judicial Cooperation (EUPLANT) supported by the Erasmus+ programme of the EU. It is a further development of papers presented on the occasion of two workshops organised by the City University of Hong Kong and the Queen Mary University of London in March 2021.

The CAI both consolidates and innovates investment rules between China and the EU. The CAI has been developed as an independent investment agreement without trade issues (thus excluding substantive rules on public procurement, subsidies, etc.) and, as mentioned earlier, would replace the 25 existing BITs to create new obligations under the Treaty for Ireland.95 This would have the effect of harmonising all EU investment policies towards China. The CAI also innovates because it is notably different from existing agreements between China and EU Member States. It aggregates all features of China’s current BITs with the EU and puts them into perspective in a single document, covering a unified way of processes such as offering liberalised market access and an investment protection pact. The idea of innovation, to our understanding, occurs when parties account for new and progressive issues arising with changing times and address them by formulating treaties accordingly. They take into account new approaches and combinations to treaty design rather than only using the rational approach. In other words, the design elements offer a benefit in the form of greater compliance but do so by increasing the cost to the parties in the event of a violation.

In their article, Vaccero and Giemza look into the substantive rights recognised to foreign investors in the CAI. In the light of the legal and policy frameworks of both the EU and China as well as the 25 BITs between the PRC and EU Member States, this article highlights the specificities of the CAI, whose content blurs the lines with other areas of law including environmental law, labour law, and public international law.

Against the background of China’s State model of corporate capitalism, SU sheds light on the specific regime governing State-Owned Enterprises in the CAI. She argues that the new SOE rules do leave a significant scope for interpretation and are in a way less stringent than the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) model of regulation for Chinese State-Owned Enterprises.

The Special Issue also focuses on the question of sustainable development. Sustainable development is important for both the EU and China, although not for similar reasons.96 There were consistent efforts on the part of the European Parliament to have a robust mechanism for the prevention of forced labour and the addressing of environmental concerns within the CAI. A broader analysis of the CAI is as follows:97 CAI refers to human rights, sustainable development, climate change, responsible business conduct and high levels of environmental and labour rights protection in the Preamble. The CAI further establishes that parties can establish their own levels of domestic labour and environmental protection but within the broader ambit of high levels of protection. The CAI also mandates that parties have to comply with the environmental and labour treaties that they have ratified, including any climate change agreements and International Labour Organization conventions. Addressing concerns regarding forced labour requires parties to ‘work towards’ ratifying all fundamental ILO conventions – including No. 29 and 105 on forced labour. It is to be noted that these two conventions have now been ratified by the PRC.98 Lastly, the CAI establishes a Working Group on Sustainable Development to facilitate and monitor implementation and dispute settlements arrangements that will allow parties to bring compliance issues to an independent body.

In his article, Dagbanja focuses on the Corporate Social Responsibility provisions of the CAI and assesses their potential to make investment work for sustainable development. It argues the reliance on voluntary Corporate Social Responsibility Standards in place of legally binding obligations for foreign investors will fail to address the negative impact the further liberalisation of investment flows might have on sustainable development.

Also focusing on section IV of the CAI, Qian narrows down the focus by looking specifically at the environmental provisions included in the agreement. Taking due account of nexus between FDIs and environmental protection, this article situates the CAI against the background of arbitral decisions at the interface between investment law and environmental law. It also sheds light on the potential impact of the CAI on the transition to a green economy in the EU. Next to environmental protection, labour rights are also an important aspect of sustainable development.

In their article, Marx and Otterburn situate the labour rights provisions of the CAI against the background of the treaty practices of the EU and China. They focus in particular on five issues: international commitments, domestic labour regulation, dispute settlement, cooperation and stakeholder engagement. They conclude that while the CAI goes further than what China normally includes in its investment agreements, the CAI does not go as far as other treaties adopted by the EU in protecting labour rights.

The Special Issue also explores the remaining question of dispute resolution. ISDS is an essential feature of BITs that have aided their success while also attracting increasing criticism. However, because the CAI lacks ISDS or the EU’s proposed Investment Court System, investors cannot use these rules directly for arbitration but must encourage policymakers to resolve the issue on a State-to-State basis. Most of the time, the EU has faced legal and political difficulties in negotiating and ratifying ISDS accords. Similarly, the CAI was also finalised without the investment protection and dispute resolution provision, which might be considered as an exemption from its mandate for negotiation. Ideally, investment protection may potentially reflect a modernised investment protection standard aimed at settling (ISDS) with an additional appeal process, but since the CAI lacks this aspect as of yet, the pre-existing BITs will come into play until complete investment protection, and dispute resolution framework is formed under the CAI. Thus, the former BITs with China will continue to provide different levels of protection for investments and access to the existing ISDS framework.

In his article, Ascensio takes stock of the intergovernmental nature of the multiple dispute settlement mechanisms included in section V of the CAI. While the CAI does not include an effective investor protection mechanism, this article analyses the role to be played by China-EU arbitration panels, the relationship of the CAI with the dispute settlement mechanisms foreseen in the BITs between the PRC and EU Member States, as well as the relationship between the CAI and future treaties concerning the settlement of investment disputes.

While being a watershed event for investment law and policies at both bilateral and multilateral levels, the story of the CAI remains very much open-ended. In their article, Burnay and Raube shed light on the events that have led to the conclusion ‘in principle’ followed by the ‘freezing’ of the adoption of the CAI by the EU. They analyse both theoretically and empirically how (geo-)politicisation and compartmentalisation have served as both opportunities and obstacles in the trade and investment relationship between the EU and China. They conclude their article and the Special Issue by showing that it has become increasingly difficult to disentangle trade and investment laws and policies from human rights in the EU external actions.

Biographical Note

Julien Chaisse currently serves as professor at the City University of Hong Kong (CityU), School of Law. He is an award-winning and world-renowned expert on international economic law (trade, investment, and tax), cyberlaw, and international dispute resolution. His work has garnered wide academic recognition and has been cited by international courts/tribunals as well as the US Courts. He is the recipient of the Smit-Lowenfeld Prize from the International Arbitration Club of New York (2020) and the awardee of the Humanities and Social Sciences Prestigious Fellowship (2021). Dr. Chaisse writes a regular column (‘The Global Lawyer’) for The Financial Times’ fDI Intelligence magazine, where he discusses current events in foreign investment law and politics.

Matthieu Burnay is a Senior Lecturer (Associate Professor) in Global Law at Queen Mary University of London. He is also a Visiting Professor at Beijing Normal University and Paris 1 Pantheon-Sorbonne, as well as an Associate Researcher at the Leuven Centre for Global Governance Studies, University of Leuven. He has an interdisciplinary background in law, political science and history. He holds a PhD in Law from the University of Leuven and a Double MSc degree in International Affairs from Peking University and the London School of Economics. His main research interests are in global law and governance; the study of the political and legal aspects of EU-China relations in global governance; as well as the comparative study of the rule of law in Europe and Asia.

Disclaimer

The work on this Special Issue took place in the context of the Jean Monnet Network EUPLANT (EU-China Legal and Judicial Cooperation) financed by the Erasmus+ Programme of the European Union (Ref: 599857-EPP-1-2018-1-UK-EPPJMO-NETWORK).

1

EU-China Comprehensive Agreement on Investment (CAI) (Brussels, 22 January 2021) <https://trade.ec.europa.eu/doclib/press/index.cfm?id=2237>. European Union Press Release, ‘EU and China Reach Agreement in Principle on Investment’ (30 December 2020) <https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2541> both accessed 24 June 2022.

2

ibid.

3

European Parliament, ‘Resolution of 20 May 2021 on the Chinese Countersanctions on EU Entities and MEPs and MPs (2021/2644) (RSP)’ (20 May 2021) <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021IP0255&from=EN>. See also European Parliament, ‘Resolution New EU-China Strategy’, noting that the CAI cannot go into effect until China drops sanctions, admonishing China over abusive practices in Hong Kong, Taiwan and Xinjiang, and calling for counter measures. European Parliament, ‘Resolution of 16 September 2021 on a New EU-China Strategy’ (16 September 2021) 2021/2037 (INI) <www .europarl.europa.eu/doceo/document/TA-9-2021-0382_EN.html> both accessed 24 June 2022.

4

See, for example, Sieglinde Gstöhl and Dirk De Bièvre, Trade Policy of the European Union (Macmillan 2017).

5

Adrian Johnston and Michael Trebilcock, ‘Fragmentation in International Trade Law: Insights from the Global Investment Regime’ (2013) 12(4) WTR 621.

6

Foreign Investment Law of the People’s Republic of China (adopted at the Second Session of the 13th National People’s Congress 15 March 2019, entered into force 1 January 2020).

7

See Yawen Zheng, ‘China’s New Foreign Investment Law and Its Contribution Towards the Country’s Development Goals’ (2021) 22(3) JWIT 388.

8

Norah Gallagher and Wenhua Shan, Chinese Investment Treaties: Policies and Practice (OUP 2009) 592; Stephen W Schill, ‘Tearing Down the Great Wall: The New Generation Investment Treaties of the People’s Republic of China’ (2007) 73(15) Cardozo J Intl & Comp L 76; Julien Chaisse, China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy (OUP 2019); Matthias Vanhullebusch, ‘China’s International Investment Strategy: Towards a Relational Normativity’ (2020) 21(6) JWIT 921.

9

Congyan Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (OUP 2019); Matthieu Burnay, ‘China and Global Governance: Towards a Low-Cost Global Legal Order?’ (2018) 31 The Hague Yearbook of International Law 15.

10

Axel Berger, ‘China and the Global Governance of Foreign Direct Investment – The Emerging Liberal Bilateral Investment Treaty Approach’ (2008) Deutsches Institut für Entwicklungspolitik Discussion Paper 10/2008, 42.

11

Marc Bungenberg, International Investment Law and EU Law (Springer 2011); Angelos Dimopoulos, EU Foreign Investment Law (OUP 2011).

12

Stephen Woolcock, European Union Economic Diplomacy: The Role of the EU in External Economic Relations (Ashgate 2012).

13

Julien Chaisse, ‘Promises and Pitfalls of the European Union Policy on Foreign Investment – How Will the New EU Competence on FDI Affect the Emerging Global Regime’ (2012) 15(1) JIEL 51; Johann Robert Basedow, The EU in the Global Investment Regime: Commission Entrepreneurship, Incremental Institutional Change and Business Lethargy (Routledge 2018).

14

See for example Wenhua Shan, ‘EU Enlargement and the Legal Framework of EU-China Investment Relations’ (2005) 6(2) JWIT 237.

15

Yuwen Li, Tong Qi and Cheng Bian, China, the EU and International Investment Law: Reforming Investor-State Dispute Settlement (Routledge 2019); Julien Chaisse, China-European Union Investment Relationships: Towards a New Leadership in Global Investment Governance? (Cheltenham 2018).

16

European Parliament, ‘Resolution of 20 May 2021 on Chinese Countersanctions on EU Entities and MEPs and MPs’ (20 May 2021) 2021/2644 (RSP).

17

Mission of the People’s Republic of China to the European Union, ‘Foreign Ministry Spokesperson Announces Sanctions on Relevant EU Entities and Personnel’ (22 March 2021) <www.chinamission.be/eng/fyrjh/t1863128.htm> accessed 24 June 2022.

18

European Parliament (n 16) para 10.

19

See generally Anthea Roberts, Is International Law International? (OUP 2017); Stephan W Schill, ‘Special Issue: Dawn of an Asian Century in International Investment Law?’ An Introduction (2015) 16(5–6) JWIT 765.

20

Mathias Forteau, ‘Comparative International Law Within, Not Against, International Law: Lessons from the International Law Commission’ (2017) 109 AJIL 498, 499.

21

Matthew D Stephen and Michael Zürn (eds), Contested World Orders: Rising Powers, Non-Governmental Organizations, and the Politics of Authority Beyond the Nation-State (OUP 2019).

22

Oleksandr Merezhko, ‘The Idea of Comparative International Law’ (2016) 11 Journal of Comparative Law 92–95.

23

Mireille Delmas-Marty, ‘Governing Globalisation Through Law’ (2020) 11 European Journal of Risk Regulation 195.

24

Georgios Dimitropoulos, ‘Special Issue: Comparative and International Investment Law: Prospects for Reform’ (2020) 21(1) JWIT 1.

25

Kate Miles, The Origins of International Investment Law (CUP 2015) 19.

26

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) 211.

27

CJEU, Case 294/83, Les Verts v European Parliament (1986) ECLI:EU:C:1986:166, para 23.

28

Walter Hallstein, Die EWG – Eine Rechtsgemeinshaft – Rede anlässlich der Ehrenpromotion (University of Padua 1962) 343–44, translation in Thomas von Danwitz, ‘The Rule of Law in the Recent Jurisprudence of the ECJ’ (2014) 37(5) Fordham Intl L J 1311, 1312–13.

29

David Allen and Michael Smith, ‘Western Europe’s Presence in the Contemporary International Arena’ (1990) 16(1) Review of International Studies 19, 20.

30

Christine Kaddous (ed), The European Union in International Organisations and Global Governance: Recent Developments (Oxford and Hart 2015) part III.

31

Jan Wouters and others (eds), Improving the EU’s Status in the UN and the UN System: An Objective Without a Strategy? (Hart 2015).

32

Julien Chaisse, ‘Sixty Years of European Integration and Global Power Shifts: Perceptions, Interactions and Lessons’ (Hart 2020).

33

General Secretariat of the Council, ‘Council Conclusions – EU Action to Strengthen Rules-Based Multilateralism’ (17 June 2019) 10341/19.

34

Catharine Titi, ‘International Investment Law and the European Union: Towards a New Generation of International Investment Agreements’ (2015) 26(3) EJIL 639.

35

European Parliament Resolution of 8 July 2015 Containing the European Parliament’s Recommendations to the European Commission on the Negotiations for the Transatlantic Trade and Investment Partnership (TTIP) (8 July 2015) 2014/2228 (INI). See also Pierre Collet, ‘The Current European Union Investor State Dispute Settlement Reform: A Desirable Outcome for Investment Arbitration?’ (2021) 53 NYU J Intl L & Pol 689.

36

‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Towards a Comprehensive European International Investment Policy’ (7 July 2010) COM (2010)343; European Commission, ‘Reflection Paper on Harnessing Globalisation’ (10 May 2017) 14.

37

Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 Establishing a Framework for the Screening of Foreign Direct Investments into the Union (19 March 2019) PE/72/2018/REV/1.

38

See generally Phil CW Chan, ‘China’s Approaches to International Law Since the Opium War’ (2014) 27(4) LJIL 859.

39

Burnay (n 9).

40

Matthieu Burnay, ‘La Chine et la Résolution Internationale des Conflits: L’Etat de Droit en Droit International à l’Epreuve de l’Autoritarisme ?’ (2021) XXII Annuaire Français des Relations Internationales 407.

41

Julien Chaisse, ‘China’s “Belt and Road” Initiative: Mapping the World Trade Normative and Strategic Implications’ (2018) 52(1) JWT 163. See also Julien Chaisse and Xueliang Ji, ‘Stress Test for EU’s Investment Court System: How Will Investments Be Protected in the Comprehensive Agreement on Investment?’ (2022) 49(1) LIEI 101–24.

42

Matthew S Erie, ‘Introduction to the Symposium on Legal Dimensions of Chinese Globalization: China and Global Health Governance’ (2020) 8(2) The Chinese Journal of Comparative Law 281.

43

Heng Wang, ‘The Belt and Road Initiative Agreements: Characteristics, Rationale, and Challenges’ (2021) 20 WTR 282.

44

Jiangyu Wang, ‘Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda’ (2020) 8(1) The Chinese Journal of Comparative Law 4.

45

On the BRI, see Donald Lewis, ‘OBOR in the Context of China-EU FDI and China’s Evolving Economic Diplomacy’ in Julien Chaisse (ed), China-European Union Investment Relationships: Towards a New Leadership in Global Investment Governance? (Edward Elgar 2018) 177.

46

See generally Julien Chaisse, China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy (OUP 2019).

47

Xu Qian, ‘Scoping the Impact of the Comprehensive Agreement on Investment: Liberalization, Protection, and Dispute Resolution in the Next Era of EU-China Relations’ (2022) 30(1) Asia Pacific Law Review 1–44.

48

Vivienne Bath, ‘China’s Role in the Development of International Investment Law – From Bystander to Participant’ (2020) 15(2) Asian Journal of WTO and International Health Law and Policy 359, 385.

49

Norah Gallagher, ‘Role of China in Investment: BITs, SOEs, Private Enterprises, and Evolution of Policy’ (2016) 31(1) ICSID Rev 88.

50

Malcolm Langford and others, ‘Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions’ (2020) 21 JWIT 167.

51

Pieter De Wilde, ‘No Polity for Old Politics? A Framework for Analyzing the Politicization of European Integration’ (2011) 33(5) Journal of European Integration 559, 560.

52

Gus Van Harten, The Trouble with Foreign Investor Protection (OUP 2020).

53

Daniel Behn, Ole Kristian Fauchald and Malcolm Langford (eds), The Legitimacy of Investment Arbitration: Empirical Perspectives (CUP 2021).

54

Ferdi De Ville and Gabriel Siles-Brügge, ‘Why TTIP Is a Game-Changer and Its Critics Have a Point’ (2017) 24(10) Journal of European Public Policy 1491.

55

Florian Couveinhes-Matsumoto, ‘Les Problèmes du CETA? Il Est Temps de “Démocratiser” les Traités!’ (Mediapart, 31 October 2016) <https://blogs.mediapart.fr/florian-couveinhes-matsumoto/blog/311016/les-problemes-du-ceta-il-est-temps-de-democratiser-les-traites> accessed 24 June 2022.

57

Sophie Meunier and Kalypso Nicolaidis, ‘The Geopoliticization of European Trade and Investment Policy’ (2019) 57 Journal of Common Market Studies 103.

58

Zhaohui Wang and Zhiqiang Sun, ‘From Globalization to Regionalization: The United States, China, and the Post-Covid-19 World Economic Order’ (2021) 26(1) Journal of Chinese Political Science 69.

59

Uri Dadush and Andre Sapir, ‘Is the European Union’s Investment Agreement with China Underrated?’ (Bruegel, 13 April 2021) <www.bruegel.org/2021/04/is-the-european-unions-investment-agreement-with-china-underrated/> accessed 24 June 2022.

60

See generally, Sophie Meunier, Brian Burgoon and Wade Jacoby, ‘The Politics of Hosting Chinese Investment in Europe – An Introduction’ (2014) 12 Asia Europe Journal 109.

61

Malgorzata Jakimów, ‘Desecuritisation as a Soft Power Strategy: The Belt and Road Initiative, European Fragmentation and China’s Normative Influence in Central-Eastern Europe’ (2019) 17 Asia Europe Journal 369.

62

Helena Smith, ‘Greece Glocks EU’s Criticism at UN of China’s Human Rights Record’ (The Guardian, 18 June 2017) <www.theguardian.com/world/2017/jun/18/greece-eu-criticism-un-china-human-rights-record> accessed 24 June 2022.

63

Kerry Brown, ‘Chinese Storytelling in the Xi Jinping Era’ (2020) 16 The Hague Journal of Diplomacy 1.

64

G John Ikenberry, ‘The End of Liberal International Order?’ (2018) 94(1) International Affairs 7.

65

Matthieu Burnay and Julien Chaisse, ‘Global Commons as an Emerging Arena of Contestation of Global Governance Structures and Norms’ (2020) 22(5) ICLR 533.

66

Tom Ginsburg, ‘How Authoritarians Use International Law?’ (2020) 31(4) Journal of Democracy 44.

67

Andrew Small, ‘Europe’s China Deal: How Not to Work with the Biden Administration’ (European Council on Foreign Relations, 21 January 2021) <https://ecfr.eu/article/europes-china-deal-how-not-to-work-with-the-biden-administration/> accessed 24 June 2022.

68

‘European Commission and HR/VP Contribution to the European Council: EU-China – A Strategic Outlook’ (12 March 2019) <https://ec.europa.eu/info/sites/default/files/communication-eu-china-a-strategic-outlook.pdf> accessed 24 June 2022.

69

Council Regulation (EU) 2020/1998 of 7 December 2020 Concerning Restrictive Measures Against Serious Human Rights Violations and Abuses (7 December 2020) OJ L 410 I, 1.

70

On the overall ‘authoritarian turn’ under Xi Jinping, see Carl Minzner, End of an Era: How China’s Authoritarian Revival Is Undermining Its Rise (OUP 2018).

71

Chad Damro, ‘Market Power Europe’ (2012) 19(5) European Journal of Public Policy 682.

72

Anu Bradford, Brussels Effect (OUP 2020).

73

Matthew Erie and Thomas Streinz, ‘The Beijing Effect: China’s “Digital Silk Road” as Transnational Data Governance’ (2021) 54 NYU J Intl L & Pol (online).

74

Chester Brown and Kate Miles, Evolution in Investment Treaty Law and Arbitration (CUP 2011).

75

G Matteo Vaccaro-Incisa, China’s Treaty Policy and Practice in International Investment Law and Arbitration: A Comparative and Analytical Study (Brill 2021).

76

On this debate, see Andrew Kerner, ‘What Can We Really Know About BITs and FDI?’ (2018) 33 ICSID Rev 1.

77

Catharine Titi, The Right to Regulate in International Investment Law (Hart 2014).

78

Matthieu Burnay and Kolja Raube, ‘Coherence and Legitimacy – Variations of a Theme in the Case of EU-China Relations’ (2018) 4 Global Affairs 291.

79

In 2012, the EU adopted a regulation detailing how these agreements are to be applied to ensure their consistency with EU Law: Regulation (EU) No (1219/2012) of the European Parliament and of the Council Establishing Transitional Arrangements for Bilateral Investment Agreements Between Member States and Third Countries (12 December 2012) OJ L 351/40.

80

Towards a Comprehensive European International Investment Policy (n 36); European Parliament Resolution of 6 April 2011 on the Future European International Investment Policy (6 April 2011) 2010/2203 (INI); European Commission, ‘Reflection Paper on Harnessing Globalisation’ (10 May 2017) <https://ec.europa.eu/info/publications/reflection-paper-harnessing-globalisation_en> accessed 24 June 2022.

81

See generally Linda Yueh, China’s Growth: The Making of an Economic Superpower (OUP 2013).

82

The paper starts with how trade and investment developed together. It notes a few points of divergence: a) the multilateral nature of trade vis-a-vis bilateral/regional approach of BITs; b) pro-trade approach in the WTO vis-a-vis pro-investor approach in BITs; and c) how the WTO is based on market access and reducing tariffs and BITs had a colonial background in formation. See Sungjoon Cho and Jürgen Kurtz, ‘Convergence and Divergence in International Economic Law and Politics’ (2018) 29 EJIL 169.

83

See generally Georgios Dimitropoulos, ‘National Sovereignty and International Investment Law: Sovereignty Reassertion and Prospects of Reform’ (2020) 21 JWIT 71, 90.

84

Lizzie Knight and Tania Voon, ‘The Evolution of National Security at the Interface Between Domestic and International Investment Law and Policy: The Role of China’ (2020) 21(1) JWIT 104.

85

Foreign Investment Law of the People’s Republic of China (n 6). On China’s foreign investment law, see Yuwen Li and Cheng Bian, Chinas’s Foreign Investment Law Regime: Progress and Limitations (Routledge 2022).

86

Order No 37 of the National Development and Reform Commission of the People’s Republic of China and the Ministry of Commerce of the People’s Republic of China, Measures for the Security Review of Foreign Investment (19 December 2020).

87

The Anti-Foreign Sanctions Law of the People’s Republic of China (as adopted at the 29th session of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China on 10 June 2021).

88

Helena Legarda and Katja Drinhausen, ‘China’s Anti-Foreign Sanctions Law: A Warning to the World’ (MERICS, 24 June 2021) <https://merics.org/en/short-analysis/chinas-anti-foreign-sanctions-law-warning-world> accessed 24 June 2022.

89

Regulation (EU) (2019/452) of the European Parliament and of the Council of 19 March 2019 Establishing a Framework for the Screening of Foreign Direct Investments into the Union (19 March 2019) PE/72/2018/REV/1.

90

Council Regulation (EU) (2020/1998) (n 69); Council Decision (CFSP) (2020/1999) of 7 December 2020 Concerning Restrictive Measures against Serious Human Rights Violations and Abuses (7 December 2020) L 410 I/13.

91

European Parliament Resolution of 10 March 2021 with Recommendations to the Commission on Corporate Due Diligence and Corporate Accountability (10 March 2021) 2020/2129 (INL); Proposal for a Directive of the European Parliament and of the Council of 23 February 2022 on Corporate Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (23 February 2022) 2019/1937.

92

On the relation and interactions between international trade and investment law, see Friedl Weiss, ‘Trade and Investment’ in Peter Muchlinski, Federico Ortino and Christoph Schreuer (eds), The Oxford Handbook of International Investment Law (OUP 2008).

93

Terence C Halliday and Gregory Shaffer, Transnational Legal Orders (CUP 2015).

94

See generally Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (CUP 2009).

95

Ireland is the only EU Member State without a BIT with China.

96

Julien Chaisse, ‘FDI and Sustainable Development in the EU-China Investment Treaty: Neither High nor Low, Just Realistic Expectations’ (24 January 2022) Columbia FDI Perspectives No 323 <https://ccsi.columbia.edu/sites/default/files/content/docs/fdi%20perspectives/No%20323%20-%20Chaisse%20-%20FINAL.pdf> accessed 24 June 2022.

97

Lorenzo Cotula, ‘EU-China Comprehensive Agreement on Investment: An Appraisal of Its Sustainable Development Section’ (2021) 6(2) Business and Human Rights Journal 1, 4–6.

98

‘China Ratifies International Forced Labor Conventions’ (DW, 20 April 2022) <www.dw.com/en/china-ratifies-international-forced-labor-conventions/a-61528084> accessed 24 June 2022.

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