China and International Investment Law

Twenty Years of ICSID Membership


Editors: Wenhua Shan and Jinyuan Su
The first volume in the Silk Road Studies in International Economic Law Series, China and International Investment Law: Twenty Years of ICSID Membership examines cutting-edge issues of international investment law and arbitration in interaction with China, the second largest economy of the world. With particular attention to ongoing major negotiations of bilateral and regional investment treaties, including the TPP, TTIP and China's BIT negotiations with the EU and USA, the collection is timely, thorough, and incisive.

All readers with an interest in the latest developments in international investment law in general, and the Chinese foreign investment regime in particular, will find an indispensable new resource in this collection of essays from esteemed experts in the field.

The volume originated from the "China and ICSID" International Workshop and Roundtable on International Investment Law and Arbitration, organized to commemorate the 20th anniversary of China's accession to the ICSID Convention.

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Editor Wenhua Shan, Ph.D., Trinity College, Cambridge, is the Ministry of Education Yangtze River Chair Professor of International Economic Law and the founding Dean of Xi'an Jiaotong University School of Law, Senior Fellow of Lauterpacht Centre for International Law, University of Cambridge and the founding Editor-in-Chief of The Chinese Journal of Comparative Law. He has published monographs and articles in such journals as the AJCL and EJIL.

Assistant Editor Jinyuan Su, Ph.D., Xi'an Jiaotong University, is Associate Professor and Assistant Dean at Xi'an Jiaotong University School of Law. He has published one book and many articles on international and comparative law.
Edited by Wenhua Shan, Xi'an Jiaotong University School of Law
"This book provides readers with an examination of Chinese international investment law–both inside and outside, both retrospective and prospective, both descriptive and constructive. Chinese investment law has been widely recognized as having increasing implications on international investment law as a whole, though it is too early to draw a definite conclusion as to the extent and nature of such implications. In some sense, it is this uncertainty that endows this book with a fantastic reading value." - ICSID Review

"The book makes an important contribution to the recent literature on China’s role in the international investment law regime, which includes International Investment Law: A Chinese Perspective by Guiguo Wang (2014) and Chinese Investment Treaties: Policies and Practice by Wenhua Shan and Norah Gallagher (2009). It will be of use to students, academics, and practitioners alike in explaining China’s evolving participation in the international investment legal regime and likely future developments.” - Kate Apostolova and Lexi Menish, Freshfields Bruckhaus Deringer
Part I: Overarching Issues in International Investment Law

Chapter 1. ICSID and International Investment Treaty Arbitration: Progress and Prospects
Meg Kinnear
1. Treaty Design
2. Dispute Avoidance
3. Application of Substantive Obligations
4. Procedure
5. Conclusion

Chapter 2. The Past, Present and Future of the International Law on Foreign Investment
M Sornarajah
1. The Past
2. The Present
3. The Future

Chapter 3. Judicial Administration of Justice in Multilevel Commercial, Trade and Investment Adjudication?
Ernst-Ulrich Petersmann
1. Introduction and Methodological Premises
2. ‘Constitutional Justice’ Protecting Human Rights: The European ‘Kadi’- and ‘Solange’ Jurisprudence
3. From ‘Westphalian Justice’ in the ICJ and the WTO to Multilevel Cosmopolitan Adjudication in HRL and IEL
4. Lack of ‘Cosmopolitan Justice’ in WTO Jurisprudence? Need for Taking the Customary Rules of Treaty Interpretation More Seriously
5. Does HRL Require Protecting WTO Law and Dispute Settlement as Cosmopolitan Legal Systems?
6. Multilevel Judicial Protection of ‘Cosmopolitan Justice’ in Commercial and Investment Adjudication
7. Conclusions: HRL Justifies ‘Constitutional’ and ‘Cosmopolitan Approaches’ to IEL and Adjudication

Chapter 4. The Development by States of Model Bilateral Investment Treaties
Chester Brown
1. Introduction
2. Introduction to BITs
3. Historical Predecessors to the BIT
4. Emergence of the (Model) Bilateral Investment Treaty
5. Concluding Remarks

Chapter 5. Protection of the Investor’s Legitimate Expectations: Intersection of a treaty obligation and a general principle of law
1. Introduction
2. “Tour d’horizon” of Arbitral Jurisprudence
2.1 Origin
3. Legal Basis: A General Principle of Law
4. Conclusion

Part II: Chinese Investment Treaties: Key Aspects

Chapter 6. Factors to be Considered for China’s Future Investment Treaties
Yongjie Li
1. Introduction
2. China’s BIT Practice
3. Global Context
4. China’s Domestic Context
5. Improvement of Investor-State Dispute Settlement
6. Conclusion

Chapter 7. China’s BIT’s and Arbitration Practice: Progress and Problems
Norah Gallagher
1. Introduction
2. China’s changing position on Investment Treaties
3. China's Free Trade Agreement Policy
4. Interesting Developments since China signed the ICSID Convention
5. China’s Investment Treaty Arbitration cases
6. Conclusion

Chapter 8. China and International Investment Law: An Evolving Relationship
Martin Endicott
1. The Evolving Relationship
2. Promotion of Inward FDI
3. Driving Factors Behind China’s Investment Treaty Program
4. Concluding Comments

Chapter 9. The Chinese Investment Treaty Programme, Jurisdictional Challenges and Investment Planning: The Example of Chinese Outbound Investments in the Natural Resources Sector
Nils Eliasson
1. Introduction
2. Chinese outbound natural resources investments
3. Investment treaty protection of Chinese natural resources investments
4. To what extent is investment protection strategies employed by Chinese companies investing in the natural resources sector
5. Discussion

Part III: Chinese Investment Treaties: Key Negotiations

Chapter 10. The Chinese Investment Regime and the US-China BIT Negotiations
Eric Pekar
1. Introduction
2. The Evolution of China’s Investment Treaty Regime
3. BITs and the Chinese Legal System
4. US Domestic Politics, National Security, and BITs
5. Negotiating the U.S.-China BIT
6. Conclusion: Why Negotiate a BIT?

Chapter 11. The Evolution of EU Investment Law and Future of EU-China Investment Relations
Marc Bungenberg and Catharine Titi
1. The status quo of investment policymaking in the EU before and after the entry-into-force of the Treaty of Lisbon
2. History of Chinese international investment law policy and practice
3. A prospective EU-China IIA
4. China-EU developments in a broader context
5. Conclusion

Chapter 12. Instituting Investment Claims under the Trans-Pacific Partnership Agreement
Leon E Trakman
1. Sources of an Investment Chapter
2. Key Definitions
3. Standards of Treatment
4. Modelling Dispute Management under the TPPA
5. Australia's Objection to Investor-State Arbitraion
6. Conclusion

Chapter 13. Joint Interpretations under a Divided TPP Investment Chapter
Mark Feldman
1. Introduction
2. Origin and Status of the TPP Negotiations
3. A TPP Investment Chapter Should not Require Senior Political Level participation for Joint Interpretations
4. Joint Interpretations and the Dispute Settlement Section of a TPP Investment Chapter

Academics, law students and practicing lawyers in international investment law and arbitration, particularly those with an interest in Chinese foreign investment law and practice.