8 - Transitional Clauses in Transition and the Black Hole in Chinese BIT Law

Summary

The transition of China’s BITs from first generation to second generation is a remarkable landmark for China’s market-oriented economy. However, the discrepancy between the new- and old-generation Chinese BITs, which causes confusion in interpretation and application of BIT terms, has become an obstacle for investors seeking relief through international arbitration under these BITs. With the new-generation BITs that China is renegotiating and re-signing with its counterparties, investors more often encounter difficulty in interpreting and applying appropriate treaty terms under either old or new BITs. This chapter analyzes the case of Ping An v. Belgium to address the following: (a) investment disputes arising prior to the new BITs potentially falling into a “black hole” or “arbitration gap” between the new and old BITs; (b) the term “dispute” in transitional clauses and its scope of application; and (c) the presumed intention of the contracting parties as shedding light on the true meaning of a transitional clause. The chapter makes an in-depth study of how ICSID tribunals interpret and apply transitional clauses and further examines the retroactivity of transitional clauses.