6 - How Are Chinese BITs Interpreted? Jurisprudential Review of Treaty Interpretative Tools in Chinese BIT-based Arbitration Cases

Summary

This chapter reviews China’s BIT-related ISDS cases, in particular the awards on jurisdiction, and the tribunals’ varying techniques in interpreting the ISDS clauses in China’s BITs with a focus on jurisprudential analysis of these cases and the tribunals’ treaty interpretive techniques. In brief, the tribunals have tended to take an expansive approach when called upon to determine jurisdictional issues. Albeit largely jurisprudential, a sense of the tribunals’ treaty interpretation techniques may help shape some foundational underpinnings for China’s policy response to the proposals to reform the ISDS system made by the EU, the USA and others. This chapter also touches on two unique procedural rules in Chinese BITs: (1) those relating to the legal standing of investors originated from Hong Kong and Macau, and (2) those relating to SOEs. Chinese SOEs are often involved in public international law as the governmental instrument triggering state responsibility for breaches of international law due to the rules of state attribution.