China, the EU and International Investment Law: Reforming Investor-State Dispute Settlement

Cover
Half Title
Series Page
Title Page
Copyright Page
Contents
Contributors
Foreword
Foreword
Acknowledgements
Abbreviations
Chapter 1 Introduction: opportunities and challenges towards a China–EU Comprehensive Agreement on Investment
	1.1 China–EU investment flows and policy implications
	1.2 Incentives and context in making the China–EU Comprehensive Agreement on Investment (CAI)
	1.3 Structure of this book
Part I China–EU Comprehensive Agreement on Investment: core issues
	Chapter 2 The China–EU investment agreement negotiations: rationale, motivations, and contentious issues
		2.1 Introduction
		2.2 The EU’s post-Lisbon international investment policy
		2.3 The evolution of China–EU investment policy relations
		2.4 Motivations
		2.5 Contentious issues of the China–EU CAI
		2.6 Conclusion
	Chapter 3 Convergences and divergences in the China–EU and the China–US BIT negotiations
		3.1 Introduction
		3.2 Market access: Pre-establishment national treatment with a negative list approach
			3.2.1 The US’s negative list approach: Format and content
			3.2.2 The EU’s negative list approach: Format and content
			3.2.3 Mexico’s negative list in the New EU-Mexico Agreement and the USMCA
			3.2.4 Comparison of China’s negative lists with EU/US negative lists
		3.3 Indirect expropriation and the level of compensation
			3.3.1 China’s position under the China-Canada BIT
			3.3.2 Differences between the China-Canada BIT and the 2012 US Model BIT expropriation provisions
			3.3.3 The China–EU CAI’s stance on expropriation and compensation
		3.4 SOEs
			3.4.1 The status quo of SOEs
			3.4.2 The notion of competitive neutrality
			3.4.3 The EU’s stance on SOE-related provisions
		3.5 Conclusions
	Chapter 4 Elements of public policy in the making of the China–EU Comprehensive Agreement on Investment
		4.1 Introduction
		4.2 Public policy provisions in IIAs
		4.3 The EU’s IIA-making practice on public policy provisions
			4.3.1 Public policy provisions in the preamble
			4.3.2 Public policy provisions as general and specific exceptions
			4.3.3 Interpretative provisions for greater precision in specific circumstances
			4.3.4 Stipulation of the right to regulate clause
		4.4 China’s IIA-making practice on public policy provisions
			4.4.1 Public policy provisions in the preamble
			4.4.2 Public policy provisions as general and specific exceptions
			4.4.3 Interpretative provisions for greater precision in specific circumstances
		4.5 Public policy provisions in the China–EU CAI
			4.5.1 Commonalities
			4.5.2 Disparities
		4.6 Conclusion
	Chapter 5 Bridging the gap between investments and human rights protection: prospects and challenges for the China–EU CAI
		5.1 Introduction
		5.2 ‘Recalibration’ of bilateral investment treaties (BITs)
			5.2.1 In general: BITs beyond investments
			5.2.2 In particular: The EU’s comprehensive approach to BITs
		5.3 The China–EU CAI
			5.3.1 Human rights in the EU-China strategic partnership
			5.3.2 Human rights in the China–EU CAI
			5.3.3 ISDS and human rights in the specific context of the China–EU CAI
		5.4 Conclusions
Part II Reforming ISDS: institutional aspects
	Chapter 6 Judicialization of ISDS: the European Union’s approach to multilateral reform of investment dispute settlement
		6.1 Introduction
		6.2 Consistency and predictability would be improved with a standing court
			6.2.1 The permanency of an adjudicatory body will provide increased predictability
			6.2.2 Mechanisms for better handling of parallel or linked proceedings would increase consistency
			6.2.3 An appeals mechanism could further increase consistency
				6.2.3.1 A full-fledged appeals mechanism has advantages over a preliminary reference mechanism
				6.2.3.2 Limiting the standard of review reduces certain risks inherent in appeal
				6.2.3.3 Issues with an appeals mechanism
		6.3 Independence and impartiality are better ensured by a standing court
			6.3.1 Independence and impartiality of adjudicators are best ensured in a standing court
				6.3.1.1 Permanent courts require competence and exclusivity
				6.3.1.2 Guaranteed terms of office exist to avoid financial pressure on judges
				6.3.1.3 Remuneration, privileges, and immunities
			6.3.2 A standing court can be designed to be independent and impartial
				6.3.2.1 A diverse body of judges increases the impartiality of a court
				6.3.2.2 Mechanisms to ensure the financial autonomy of the court will be necessary
		6.4 A multilateral investment court will be most effective with broad coverage
		6.5 Conclusions
	Chapter 7 Concrete issues in instituting an international investment court
		7.1 Introduction
		7.2 Brief summary of the two-tiered tribunal system of the ICS
		7.3 Value of the ICS
			7.3.1 A step in the right direction
			7.3.2 Value of the standing tribunal
			7.3.3 Value of the appellate mechanism
		7.4 Deficiencies of the ICS
			7.4.1 Unnecessary two-tiered system on the bilateral level
			7.4.2 Impracticability on the multilateral level
		7.5 Conclusions
	Chapter 8 Reforming ISDS: a Chinese perspective
		8.1 Introduction
		8.2 China’s undecided position on ongoing ISDS reform
		8.3 China’s innovative ISDS mechanisms at its domestic level and their implications
			8.3.1 China’s innovative approach to ISDS
			8.3.2 How this approach serves China’s strategy on international engagement
		8.4 China’s experience from the WTO towards the current UNCITRAL reform work
		8.5 Sharing China’s good practice of mediation in ISDS reform
			8.5.1 Mediation as a proposed alternative to arbitration
			8.5.2 China’s practice in the arbitration and mediation mix
		8.6 Conclusion
	Chapter 9 China’s policy on ISDS reform: institutional choice in a diversified era
		9.1 Introduction
		9.2 A rule-follower to a rule-leader? Institutional choice in a diversified era
			9.2.1 China’s attitude towards main options for ISDS reform
			9.2.2 Institutional competition on investor-state arbitration
			9.2.3 Aspiration, capacity, and obstacles in making a China-led ISDS institution
				9.2.3.1 Aspiration
				9.2.3.2 Capacity
				9.2.3.3 Obstacles
		9.3 Conclusion
	Chapter 10 Investor-state arbitration: an economic and empirical perspective
		10.1 Introduction
		10.2 Courts versus arbitration: Theory
		10.3 Investor-state arbitration: Theory
		10.4 Empirics of investor-state arbitration
			10.4.1 Arbitration filing
			10.4.2 Claims and awards
		10.5 The critics
			10.5.1 Bias against states?
			10.5.2 Fast. Good. Cheap?
			10.5.3 Elites?
		10.6 Concluding remarks
Part III Reforming ISDS: substantive and procedural aspects
	Chapter 11 European perspectives on the role of national courts in the resolution of investor-state disputes
		11.1 Introduction
		11.2 EU institutions’ evolving views on ISDS and the role of domestic courts
			11.2.1 The position of the European Commission
			11.2.2 The position of the European Parliament
			11.2.3 The position of EU member states and of the EU Council
		11.3 From policy to practice: Treaty innovations in current EU agreements
			11.3.1 Avoidance of duplicative proceedings
			11.3.2 Limitations on the application of domestic law
			11.3.3 Indirect encouragement of recourse to local courts?
		11.4 Policy considerations
		11.5 Conclusions
		Acknowledgement
	Chapter 12 Is (in)consistency a problem? A close look at juridical techniques in interpreting jurisdiction clauses in Chinese BIT cases
		12.1 Introduction
		12.2 Definition of ‘investor’
		12.3 Definition of ‘investment’
		12.4 Definition of ‘dispute’
		12.5 ‘Fork-in-the-road’ provision
		12.6 Limitation period
		12.7 MFN treatment of procedural rights
		12.8 Concluding remarks
	Chapter 13 Transparency of ISDS in the making of a China–EU CAI: consensus and differences
		13.1 Introduction
		13.2 The ‘transparency trend’ of ISDS
		13.3 China’s approach to the transparency issue in IIA-making
			13.3.1 China’s principled position towards transparency of ISDS
			13.3.2 The transparency provisions in China’s IIAs
		13.4 The EU’s approach to the transparency issue in IIA-making
			13.4.1 The EU’s policy towards transparency in ISDS
			13.4.2 The transparency provisions in the EU’s IIAs
		13.5 The transparency issue in the making of the China–EU CAI
			13.5.1 The growing consensus between China and the EU
			13.5.2 Some outstanding transparency issues in the making of the CAI
		13.6 Final remarks
	Chapter 14 The status of state-owned enterprises in ISDS from a European perspective
		14.1 Introduction
		14.2 China’s socialist market economy and the role of Chinese SOEs: Implications for investment arbitration
		14.3 The investment activities of Chinese SOEs in the EU and ISDS: Challenges ahead
		14.4 National security review as a complement to investment arbitration: A European perspective
		14.5 Conclusion
	Chapter 15 The status of state-owned enterprises in ISDS from a Chinese perspective
		15.1 Introduction
		15.2 SOEs and international investment agreements: An overview
		15.3 The issues of SOEs in investment arbitration practice
			15.3.1 SOE as a claimant
			15.3.2 The attribution of SOEs’ alleged wrongful acts to governments
		15.4 SOEs in Chinese investment treaties
		15.5 The issue of SOEs in the China–EU CAI negotiations
		15.6 Conclusion
	Chapter 16 Protection of victims in international investment dispute resolution: juxtaposing different topics?
		16.1 Introduction
		16.2 Can victims defend their rights against investors?
			16.2.1 Introduction
			16.2.2 Jurisdictional approach
			16.2.3 Substantive approach
			16.2.4 Investor obligations under international law?
			16.2.5 Do victims play a role?
		16.3 Options to implement human rights and environmental considerations in investment disputes
			16.3.1 Implementing obligations for investors
			16.3.2 Procedural adaptations
				16.3.2.1 Obligatory proceedings in national courts
				16.3.2.2 Dialogue-based solutions
				16.3.2.3 Appeal
				16.3.2.4 International investment court
				16.3.2.5 Fundamental reform of investment arbitration
		16.4 Recommendations
		16.5 Conclusion
	Chapter 17 A comprehensive chapter on anti-corruption in the China–EU CAI: a progressive or an unnecessary step?
		17.1 Introduction
		17.2 Cases involving corruption in international investment arbitration
			17.2.1 Diverse scenarios of allegations of corruption
			17.2.2 Unsatisfactory approaches to allegations of corruption
			17.2.3 Its impact on IIA-making practice
		17.3 The EU’s and China’s practice and policies on anti-corruption
			17.3.1 The EU’s practice and policy on anti-corruption
			17.3.2 China’s practice and policy on anti-corruption
		17.4 Anti-corruption provisions in the China–EU CAI
			17.4.1 Inserting an anti-corruption chapter is recommended
			17.4.2 An anti-corruption chapter should be comprehensive
		17.5 Conclusions
Index