5 - Expropriation in Local and Global Contexts

Summary

The doctrine and case law on expropriation in international investment law (IIL) is an unsettled area due to a variety of factors such as the diversity of interests between capital-importing and capital-exporting states, the divergence in legal, economic and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active “treaty-maker” in the universe of international investment arbitration, evidenced by its nearly 130 BITs, the notion of expropriation in these BITs is in a state of flux. This chapter scrutinizes the expropriation clauses in China’s BITs, in particular the Peru–China BIT and the Peru–China FTA, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This chapter attempts, in a comparative context, to understand the underlying rationality of China’s evolving stance on expropriation in both global and domestic contexts.