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Procedural Models to Upgrade BITs: China's Experience

Published online by Cambridge University Press:  27 November 2017

JIE (JEANNE) HUANG
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Abstract

With the rise of a new generation of investment policies, upgrading existing bilateral investment treaties (BITs) is of significant interest to states. China has upgraded 28 per cent of its investment treaties in various ways. Two investment arbitration tribunals and one highest court at the seat of arbitration have recently rendered decisions favouring the application of old Chinese BITs over the upgraded ones. China's experience with upgrading BITs may provide general policy discourse and direction for other countries planning to upgrade their BITs. Using China's experience, this article categorizes different methods of upgrading BITs into the Coexistence Model (parties to an old BIT join existing or new free trade agreements or a regional investment agreement), the Replacement Model (replace an old BIT with a new one), the Amendment Model (amend an old BIT by a protocol) and the Joint Interpretation Model (make a diplomatic announcement to interpret a BIT). This article also discusses the benefits and challenges of each model and concludes with directions for future BIT upgrading.

Keywords

Chinabilateral investment treatyfree trade agreementOne Belt and One Roadprocedure model
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 31 , Issue 1 , March 2018 , pp. 93 - 115
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

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References

1 Eighty-six countries were involved in BIT renegotiations; see T. Broude, Y.Z. Haftel and A. Thompson, ‘Legitimation Through Renegotiation: Do States Seek More Regulatory Space in Their BITs?’, Hebrew University of Jerusalem Legal Research Paper 6, available at ssrn.com/abstract=2845297 (accessed 27 October 2017).

2 UN Conference on Trade and Development (UNCTAD), World Investment Report 2012: Towards a New Generation of Investment Policies, at 84, available at unctad.org/en/PublicationsLibrary/wir2012_embargoed_en.pdf (accessed 27 October 2017).

3 Ibid.

4 Shan, W. and Wang, L., ‘The China–EU BIT and the Emerging “Global BIT 2.0”’, (2015) 30 ICSID Review: Foreign Investment Law Journal 260 CrossRefGoogle Scholar.

5 See, e.g., Chi, M., ‘The “Greenization” of Chinese Bits: An Empirical Study of the Environmental Provisions in Chinese Bits and its Implications for China's Future Bit-Making', (2015) 18 Journal of International Economic Law 511 CrossRefGoogle Scholar; Kong, Q.J., ‘The “State-Led-Economy” Issue in the BIT Negotiations and Its Policy Implications for China’, (2016) 5 China-EU Law Journal 13 CrossRefGoogle Scholar.

6 Rooney, K., ‘ICSID and BIT Arbitrations and China’, (2007) 24 Journal of International Arbitration 689, at 701–3Google Scholar; Wang, G.G., ‘Trade, Investment and Dispute Settlement: China's Practice in International Investment Law: From Participation to Leadership in the World Economy’, (2009) 34 Yale J. Int'l L. 575, at 577Google Scholar.

7 For the purpose of this article, China refers to Mainland China, excluding the Hong Kong Special Administrative Region (SAR), the Macau SAR, and Taiwan.

8 See Cai, C.Y., ‘China-US BIT Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications’, (2009) 12 Journal of International Economic Law 457, at 461Google Scholar.

9 As of November 2016, China has signed 144 BITs and a trilateral investment treaty (104 in force) and 14 FTAs (all in force) containing investment chapters. For China's BIT list, see tfs.mofcom.gov.cn/article/Nocategory/201111/20111107819474.shtml and investmentpolicyhub.unctad.org/IIA/CountryOtherIias/42#iiaInnerMenu. For China's FTA list, see fta.mofcom.gov.cn/english/fta_qianshu.shtml and investmentpolicyhub.unctad.org/IIA/CountryBits/42#iiaInnerMenu (all accessed 14 August 2017).

10 The list of 32 upgraded BITs is on file with the author.

11 Ping An Life Insurance Company of China, Limited et al. v. Belgium, Decision on Jurisdiction, ICSID Case No. ARB/12/29 (hereinafter, Ping An v. Belgium); Sanum Investments Ltd v. Government of the Lao People's Democratic Republic, UNCITRAL Award on Jurisdiction, PCA Case No. 2013-13 (hereinafter, Sanum v. Laos); proceedings at Singapore High Court and Court of Appeal as seat of arbitration, Sanum v. Laos, [2015] SGHC 15, and Sanum v. Laos, [2016] SGCA 57.

12 For termination of treaties, see Voon, T., Mitchell, A. and Munro, J., ‘Parting Ways: The Impact of Investor Rights on Mutual Termination of Investment Treaties’, (2014) 29 ICSID Review: Foreign Investment Law Journal 451, at 463CrossRefGoogle Scholar.

13 Ping An v. Belgium, supra note 11.

14 Sanum v. Laos, supra note 11.

15 Alschner, W., ‘Regionalism and Overlap in Investment Treaty Law: Towards Consolidation or Contradiction’, (2014) 17 Journal of International Economic Law 271, at 271–98CrossRefGoogle Scholar; Adlung, R. and Molinuevo, M., ‘Bilateralism in Services Trade: Is There Fire Behind the (BIT-) Smoke?’, (2008) 11 Journal of International Economic Law 365, at 370.CrossRefGoogle Scholar

16 The China-Pakistan 1989 BIT, signed on 12 February 1989 and effective on 30 September 1990.

17 The China-Pakistan FTA, signed in November 2006 and effective in July 2007.

18 ‘Incompatible’ means ‘two treaties are not capable of being applied at the same time’. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 59.1 (hereinafter, VCLT). J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2004), 283.

19 VCLT, supra note 18.

20 For the subsequent practice of the parties as a means of interpretation, see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, paras. 75–6.

21 For news reports regarding parties’ implementation and further expansion of the FTA, see fta.mofcom.gov.cn/pakistan/pakistan_special.shtml (accessed 16 February 2017). For interpreting of subsequent practice, see H. Fox, ʻArticle 31 (3) (A) and (B) of the Vienna Convention and the Kasikili/Sedudu Island Caseʼ, in Fitzmaurice, M. et al. (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (2010), 69 Google Scholar.

22 M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), 447 (indicating that recourse may be had to Art. 32 in the unlikely event that Art. 31 leads to a result which is manifestly absurd or unreasonable).

23 Art. 73.1 of the Vienna Convention on Consular Relations provides that ‘[t]he provisions of the present Convention shall not affect other international agreements in force as between States Parties to them’. O. Dörr and K. Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (2011), 512.

24 See Villiger, supra note 22, at 405.

25 Art. 31.4 of the VCLT provides that a special meaning shall be given to a term if it is established that the parties so intended.

26 The contents of the China-South Korea FTA Investment Chapter, the China-Japan-South Korea Investment Agreement, and the China-South Korea BIT (2007) differ in nine important aspects. The first difference is the definition of investment. The definition of investment in the China-South Korea FTA is the same as the China-Japan-South Korea Investment Agreement, which does not require that the investment shall comply with the laws and regulations of the host state. However, the China-South Korea BIT (2007) imposes such requirement. The second is fair and equitable treatment. The China-South Korea BIT (2007) contains an unqualified fair and equitable treatment clause, while the China-Japan-South Korea Investment Agreement adopts the generally accepted rules of international law to determine fair and equitable treatment. The China-South Korea FTA takes a step further: it not only provides that fair and equitable treatment shall comply with the customary international law minimum standard of treatment of aliens but also indicates that the treatment includes ‘the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process of law’. Third, the MFN clause in the China-South Korea BIT (2007) does not specify whether a party can invoke the most-favoured nation (MFN) clause to incorporate the dispute resolution clause in another BIT. However, the China-Japan-South Korea Investment Agreement and the China-South Korea FTA specify that the MFN clause does not apply to the settlement of investment disputes. Fourth, the transparency and prohibition of performance requirements clauses in the China-Japan-South Korea Investment Agreement and the China-South Korea FTA are very similar, while this clause does not exist in the China-South Korea BIT (2007). The fifth difference is in the entry of personnel and the intellectual property protection clauses. The China-Japan-South Korea Investment Agreement contains clauses for entry of personnel and the protection of intellectual property. The investment chapter of the China-South Korea FTA does not include these clauses, but its chapters on movement of people and intellectual property have similar contents. The China-South Korea BIT (2007) has no provision for the entry of personnel and the protection of intellectual property. Sixth, the expropriation and compensation clause in the China-South Korea BIT (2007) is almost the same as that in the China-Japan-South Korea Investment Agreement, except that the former provides that the compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation occurred, while the latter indicates that the compensation shall be equivalent to the fair market value of the expropriated investments at the time when the expropriation was publicly announced or when the expropriation occurred, whichever is the earlier. The China-South Korea FTA adopts the same expropriation and compensation clause as the China-Japan-South Korea Investment Agreement, but it adds an annex to clarify the criteria to determine direct and indirect expropriation. The seventh aspect of differences is the clause of transfers. The China-South Korea FTA, the China-Japan-South Korea Investment Agreement, and the China-South Korea BIT (2007) all provide that a party can adopt or maintain temporary safeguard measures with regard to payments and capital movements in exceptional circumstances. Exceptional circumstances refer to macroeconomic management, such as serious balance-of-payments or external financial difficulties or threat thereof, capital movements cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in either party. However, the China-South Korea FTA provides more specified rules for implementing the temporary safeguard measures. For instance, the implementation shall not exceed one year and interfere with investors’ ability to earn a market rate of return in the territory of the party on any restricted assets. These specified rules intend to balance the host state's regulatory authority and the investor's right to freely transfer capital. Eighth, the China-Japan-South Korea Investment Agreement contains a clause for prudential measures relating to financial services, authorizing a party to take measures to protect investors, depositors, policy holders or persons to whom a fiduciary duty is owed by an enterprise supplying financial services, or to ensure the integrity and stability of the financial system. This clause does not exist in the China-South Korea BIT (2007) and the China-South Korea FTA. Ninth, unlike the China-South Korea BIT (2007) and the China-South Korea FTA, the China-Japan-South Korea Investment Agreement contains a tax clause. Except the national treatment, the MFN treatment and the minimum standard treatment, the China-Japan-South Korea Investment Agreement does not apply to taxation measures. Therefore, three different investment protection regimes exist between China and South Korea.

27 Note of Art. 3 of the China-Japan-South Korea Investment Agreement indicates that Art. 3.2 (national treatment) should not be inconsistent with Arts. 3.2 and 3.3 of the China-Japan BIT (1988). Therefore, Arts. 3.2 and 3.3 of the China-Japan BIT (1988) prevail against Art. 3.2 of the China-Japan-South Korea Investment Agreement. This is because parties especially indicate so.

28 Ioannis Kardassopoulos v. Georgia, Award on Jurisdiction, ICSID Case No. ARB/05/18, para. 107 (hereinafter, Kardassopoulos).

29 Ibid, para. 66.

30 Ioannis Kardassopoulos and Ron Fuchs v. Georgia, Award on the Merits, ICSID Case Nos. ARB/05/18 and ARB/07/15, para. 241.

31 Henckels, C., ʻBalancing Investment Protection and the Public Interest: The Role of the Standard of Review and the Importance of Deference in Investor–State Arbitrationʼ, (2013) 4 Journal of International Dispute Settlement 197, at 201–3CrossRefGoogle Scholar.

32 Exchange of letters between Andrew Robb, Minister for Trade and Investment (Australia), and Ildefonso Guajardo Villarreal, Minister of Economy (Mexico) (6 November 2015). Exchange of letters between Andrew Robb, Minister for Trade and Investment (Australia), and Ana Maria Sánchez De Ríos, Minister of Foreign Affairs (Peru) (6 November 2015). Exchange of letters between Andrew Robb, Minister for Trade and Investment (Australia), and Vu Huy Hoang, Minister of Trade and Industry (Vietnam) (6 November 2015).

33 Australia Senate Foreign Affairs, Defence and Trade References Committee TPP Report, available at dfat.gov.au/trade/agreements/tpp/Pages/trans-pacific-partnership-agreement-tpp.aspx (accessed 16 February 2017).

34 ‘ASEAN’ refers to the Association of Southeast Asian Nations. Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between China and the ASEAN (China-ASEAN Investment Agreement) signed on 15 August 2009 and effective on 1 January 2010.

35 The China-New Zealand FTA, signed in April 2008 and effective on 1 October 2008.

36 The China-Australia FTA, signed in 17 June 2015 and effective on 20 December 2015.

37 The Agreement between the Government of the PRC and the Government of Peru on the Reciprocal Encouragement and Protection of Investments (the China-Peru BIT (1994)), signed on 9 June 1994 and effective on 1 February 1995.

38 Art. 3.2 of the China-ASEAN Investment Agreement. See also Art. 23 of the China-ASEAN Investment Agreement.

39 Ibid, Art. 14.2.

40 Ibid, Art. 23.

41 Art. 137.4 of the China-New Zealand FTA.

42 Ibid, Art. 137.6.

43 Ibid, Art. 3.

44 Agreement Between the Government of the Peopleʼs Republic of China and the Government of the Lao Peopleʼs Democratic Republic Concerning the Encouragement and Reciprocal Protection of Investments (the China-Laos BIT (1993)), signed on 31 January 1993 and effective on 1 June 1993.

45 The Agreement between the Government of the PRC and the Government of New Zealand on the Reciprocal Encouragement and Protection of Investments (the China-New Zealand BIT (1998)), signed on 22 November 1988 and effective on 25 March 1989.

46 Art. 92 of the China-Iceland FTA. See also Art. 4 of the China-Iceland FTA.

47 Art. 112 of the China-Singapore FTA.

48 Ibid.

49 See Section 2.3, supra.

50 K. Gordon and J. Pohl, ʻInvestment Treaties over Time - Treaty Practice and Interpretation in a Changing Worldʼ, (2015) OECD Working Papers on International Investment, at 36, available at dx.doi.org/10.1787/5js7rhd8sq7h-en (accessed 7 November 2017).

51 The exception is the China-Switzerland BIT (2009), replacing the China-Switzerland BIT (1986), which has no provision for jurisdiction ratione temporis.

52 Walter Bau AG v. Thailand, Award, UNCITRAL, 1 July 2009, at 9.67–9.68, 9.72–9.73.

53 Art. 28 of the VCLT will be further discussed in Section 4.1, infra. For cases, see Blečić v. Croatia, Decision of 29 July 2004, [2004] ECHR 397.

54 The list of Chinese BITs is on file with the author.

55 Art. 10 of the China-Belgium BIT (2009) (emphasis added).

56 For criticism and comment of the Ping An case, see Ren, Q., ‘Ping An v Belgium Temporal Jurisdiction of Successive BITs’, (2016) 31 ICSID Review: Foreign Investment Law Journal 129, at 130CrossRefGoogle Scholar; Andriotis, G., ʻPing An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium (Ping An v. Belgium)ʼ, (2016) 15 World Trade Review 532, at 532–4CrossRefGoogle Scholar.

57 Ping An v. Belgium, supra note 11, para. 207, the tribunal indicating that ‘. . . there is a real risk that disputes arising prior to the 2009 BIT but not the subject of judicial or arbitral process might fall into some “black hole” or “arbitration gap” between the two BITs’.

58 Art. 8.1 of the China-Belgium BIT (2009) (emphasis added).

59 Ibid.

60 Ping An v. Belgium, supra note 11, para. 231.

61 Even if the 2009 BIT terminates the 1986 BIT, the survival clause in the 1986 BIT can cover such disputes for ten years after the termination; see Voon, T. and Mitchell, A. D., ʻDenunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Lawʼ, (2016) 31 ICSID Review: Foreign Investment Law Journal 413, at 429CrossRefGoogle Scholar.

62 Art. 11 of the China-Portugal BIT (2005) and Art. 12 of the China-South Korea BIT (2007).

63 Additional Protocol Between the Government of the Peopleʼs Republic of China and the Government of the Peopleʼs Republic of Bulgaria Concerning the Reciprocal Encouragement and Protection of Investments (the China-Bulgaria Protocol), signed on 26 June 2007 and effective on 10 November 2007. Additional Protocol between the Government of the People's Republic of China and the Government of the Slovak Republic to the BIT, signed in 2005, and Additional Protocol to the Agreement between the Government of the People's Republic of China and the Government of Romania on the Mutual Promotion and Protection of Investments, signed in 2010. Every protocol provides that it becomes an integral part of the old BIT. See, e.g., Art. 3 of the China-Bulgaria Protocol.

64 Ibid.

65 Prince Hans-Adam II of Liechtenstein v. Germany (Liechtenstein v. Germany), Merits, Judgment of 12 July 2001, [2001] ECHR 467, paras. H8–9.

66 The Modification of the Agreement on the promotion and Mutual Protection of Investments between China and Cuba, signed on 20 April 2007 and effective on 1 December 2008 (hereinafter, the Modification of the China-Cuba BIT).

67 Ibid., Arts. 1–10. Seven aspects of the 1995 BIT are amended: the definitions of (1) investor and (2) investment; (3) MFN treatment; (4) transfer; (5) subrogation; (6) state-to-state dispute resolution; and (7) investor-state dispute resolution.

68 Art. 9.3 of the China-Cuba BIT (1995).

69 Arts. 10.1 and 10.3 of the Modification of the China-Cuba BIT.

70 The Modification of the China-Cuba BIT.

71 Nordzucker AG v. Poland, Partial Award, UNCITRAL, 10 December 2008, Section 6.2 (hereinafter, Nordzucker AG v. Poland).

72 Ibid., paras. 103–7.

73 Ibid., para. 108.

74 Ibid., paras. 105 (iv), 107, 109.

75 Ibid., para. 107 (iv).

76 Ibid., paras. 113–14.

77 Ibid., para. 110.

78 Tradex Hellas SA (Greece) v. Republic of Albania, Decision on Jurisdiction of 24 December 1996, ICSID Case No. ARB/94/2 (hereinafter, Tradex v. Albania).

79 Ibid., Section B.

80 Ibid., Section D7.

81 Nordzucker AG v. Poland, supra note 71, paras. 105, 110–12.

82 Roberts, A., ʻTriangular Treaties: The Extent and Limits of Investment Treaty Rightsʼ, (2015) 56 Harvard International Law Journal 353, at 368Google Scholar.

83 See, e.g., Art. 12 of the China-Laos BIT.

84 Arts. 1.2.3–1.2.4 of the US-Morocco FTA.

85 If a member state makes a diplomatic announcement about an existing BIT to answer the other member state's inquiry, the announcement may be also in the form of exchanges of letters.

86 3rd affidavit of Outakeo Keodouangsinh, 19 February 2014, at 8, 10-12. Sanum v. Laos, [2015] SGHC 15, supra note 11, paras. 39–40.

87 The Macao Basic Law (adopted at the First Session of the Eighth National People's Congress on 31 March 1993, effective 20 December 1999), available at www.umac.mo/basiclaw/english/ch1.html (accessed 16 February 2017).

88 Sanum v. Laos, [2015] SGHC 15, supra note 11, paras. 39–40. The first diplomatic announcement was made by the Chinese Embassy in Laos in 2014 and the second was made by the China Ministry of Foreign Affairs in 2015.

89 Sanum v. Laos, [2015] SGHC 15, supra note 11, paras. 39–40.

90 Sanum v. Laos, [2016] SGCA 57, supra note 11, para. 116.

91 For discussion of SAR in constitutional law, see Gonçalves, A., ‘A Paradigm of Autonomy: The Hong Kong and Macau Sars’, (1996) 18 Contemporary Southeast Asia 36 CrossRefGoogle Scholar.

92 Art. 31 of the PRC Constitution [Xian Fa] (adopted at the Fifth Session of the Fifth National People's Congress on 4 December 1982, amended 14 March 2004).

93 For discussion of the policy of One Country, Two Systems, see Wang, G.G. and Leung, P.M.F., ‘One Country, Two Systems: Theory into Practice’, (1998) 7 Pacific Rim Law & Policy Journal 279 Google Scholar.

94 Sanum v. Laos, [2016] SGCA 57, supra note 11, para. 116. The Court held that, because the 2014 diplomatic announcement was not admissible, it was unnecessary to consider the 2015 announcement.

95 Sanum v. Laos, [2016] SGCA 57, supra note 11, para. 116.

96 Tza Yap Shum v. The Republic of Peru, Decision on Jurisdiction and Competence of 19 June 2009, ICSID Case No. ARB/07/6.

97 Ibid., paras. 58, 61.

98 Ibid., paras., 54, 60.

99 See Shen, W., ʻThe Good, the Bad or the Ugly? A Critique of the Decision on Jurisdiction and Competence in Tza Yap Shum v. The Republic of Peruʼ, (2011) 10 Chinese Journal of International Law 55, at 61–3CrossRefGoogle Scholar.

100 Annex III of the Macau Basic Law.

101 Hart, N. and Srikumar, S., ʻInvestor-State Arbitration before the High Court of Singapore: Territoriality, Nationality and Arbitrability Case Noteʼ, (2015) 4 Cambridge Journal of International and Comparative Law 191, at 195CrossRefGoogle Scholar.

102 Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference on 21 October 2016, available at www.italaw.com/sites/default/files/case-documents/italaw7687.pdf (accessed 16 February 2017).

103 Ibid.

104 H. Xu, ʻThe Practice of Applying International Treaties to Hong Kong and Macau Special Administrative Regionsʼ, Legal Daily, available at news.xinhuanet.com/legal/2016-10/22/c_129333036.htm (accessed 10 November 2016). The author is the Head of Treaty and Law Department, China Ministry of Foreign Affairs.

105 A similar view can be found in Tams, C.J., ʻState Succession to Investment Treaties: Mapping the Issuesʼ, (2016) 31 ICSID Review: Foreign Investment Law Journal 314, at 340CrossRefGoogle Scholar (indicating that the handovers of Chinaʼs SARs are unusual cases of successions and the MTF Rule needs to be qualified).

106 Sanum and Laos agree that Art. 15 of the VCST should be considered customary international law and applied to this case. Sanum v. Laos, [2016] SGCA 57, supra note 11, para. 17. The Singapore High Court also bases its judgment on parties’ agreement on succession, Sanum v. Laos, [2015] SGHC 15, supra note 11, para. 60. For criticism of the High Court judgment, see Hwang, M. and Chang, A., ʻGovernment of the Lao People's Democratic Republic v Sanum Investments Ltdʼ, (2015) 30 ICSID Review: Foreign Investment Law Journal 506, at 517–18CrossRefGoogle Scholar.

107 Zimmermann, A. and Devaney, J. G., ‘Succession to Treaties and the Inherent Limits of International Law’, in Tams, C.J., Tzanakopoulos, A. and Zimmermann, A. (eds.), Research Handbook on the Law of Treaties (2014), 505 at 515Google Scholar.

108 Tza Yap Shum v. The Republic of Peru, Decision on Jurisdiction and Competence of 19 June 2009, ICSID Case No. ARB/07/6, para. 68.

109 Art. 27 of the VCLT.

110 Ibid., Art. 46.

111 For a discussion about the similar scenarios in Hong Kong, see Chen, A., ʻQueries to the Recent ICSID Decision on Jurisdiction upon the Case of Tza Yap Shum v. Republic of Peru: Should China-Peru BIT 1994 Be Applied to Hong Kong SAR under the One Country Two Systems Policyʼ, (2009) 10 Journal of World Investment and Trade 829, at 839–45Google Scholar.

112 Art. 2 of the Macau Basic Law.

113 Art. 136 of the Macau Basic Law; Art. 150 of the Hong Kong Basic Law.

114 For BITs concluded by Macau, investmentpolicyhub.unctad.org/IIA/CountryBits/123. For BITs concluded by Hong Kong, investmentpolicyhub.unctad.org/IIA/CountryBits/93 (accessed 16 February 2017).

115 Art. 138 of the Macau Basic Law; Art. 153 of the Hong Kong Basic Law.

116 Roberts, A., ʻPower and Persuasion in Investment Treaty Interpretation: The Dual Role of Statesʼ, (2010) 104 The American Journal of International Law 179, at 180CrossRefGoogle Scholar.

117 Ibid., at 212–13.

118 The applicability of China's BITs to its SARs have been much debated in literature, see Hwang and Chang, supra note 106, at 509, 516; Gallagher, N., ʻRole of China in Investment: BITs, SOEs, Private Enterprises, and Evolution of Policyʼ, (2016) 31 ICSID Review: Foreign Investment Law Journal 88, at 98CrossRefGoogle Scholar; Repousis, O.G., ʻOn Territoriality and International Investment Law: Applying China's Investment Treaties to Hong Kong and Macaoʼ, (2015) 37 Michigan Journal of International Law 113, at 115Google Scholar.

119 A comparable example is the EU. In order to avoid an international court or arbitral tribunal from interpreting or applying EU law in investment arbitration, in 2009, the European Court of Justice rendered three important judgments on the relationship between pre-accession BITs of EU member states with a third state and the EU law. Case C-205/06, Commission v. Austria [2009] ECR I-1301; Case C-249/06, Commission v. Sweden [2009] ECR I-1335; Case C-118/07, Commission v. Finland [2009] ECR I-10889. For comments, see N. Lavranos, ʻBilateral Investment Treaty (BITs) and EU Lawʼ, at 3, available at www.researchgate.net/publication/228148786.

120 See, e.g., Art. 1.5 of the China-South Korea FTA.

121 Art. 1 of the Protocol of the China-Russia BIT excludes Hong Kong and Macau SARs from its application. The Protocol was concluded the same date as the BIT.

122 Toh Han Shih, ‘China Outbound Investment Deals from Hong Kong Rise 66.6 Per Cent’, South China Morning Post, available at www.scmp.com/business/china-business/article/1329807/china-outbound-investment-deals-hong-kong-rise-666-cent (arguing the 66.6 per cent rise highlights Hong Kong's importance as a hub for overseas investments from China).

123 Ch. 9 of the China-Switzerland FTA.

124 Ibid., Arts. 9.1 and 9.2.