China and International Investment Law: Twenty Years of ICSID Membership is an edited collection of papers developed from the “China and ICSID” International Workshop and Roundtable on International Investment Law and Arbitration organized in 2012 by Xi’an Jiaotong University School of Law, China. The book is edited by Professors Wenhua Shan and Jinyuan Su of Jiaotong.
The book’s key themes include the evolution of China’s approach to bilateral investment treaties [BITs] as it transitions into a capital-exporting country, and the tension between Chinese state control over the economy and the protection of foreign investments. The book also covers China’s negotiations of investment treaties with the European Union [EU] and the United States [US], and the impact that such negotiations might have on future Chinese BITs.
The book is divided into three parts. In Part 1, leading experts in international investment law, including Meg Kinnear and M. Sornarajah, provide a general overview of international investment law. Part 2 discusses key features of Chinese investment treaties and describes the development of Chinese BITs, from so-called first-generation BITs, which provide for only limited arbitral jurisdiction over investors’ claims for compensation for expropriation, to second- and third-generation BITs which provide for jurisdiction over a broader range of disputes. Contributors such as Yongjie Li and Martin Endicott discuss reasons for changes in China’s BIT policy, which include, among other factors, the dramatic increase of China’s outbound foreign investment over the years (pp. 174–9, 232–3).
Part 2 also provides a historical account of China’s foreign investment arbitration experience. The book notes (pp. 183, 208) that, notwithstanding that China has entered into roughly 130 BITs, there has been one single case filed against China (Ekran Berhad v. People’s Republic of China, ICSID Case No. ARB/11/15). (Note that, since the book’s publication, there has been a second arbitration filed against China, Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25.) The book’s contributors attribute the paucity of cases against China to China’s willingness to reach a compromise when a dispute arises and to the more limited jurisdiction provided by first-generation Chinese BITs.
Part 3 provides an overview of the key investment treaty negotiations in which China is currently involved, including the negotiations of the US-China BIT and the EU-China investment agreement. Several authors, such as Eric Pekar, Marc Bungenber, and Catharine Titi, discuss the challenges of concluding those investment agreements, including the treatment of pre-establishment rights and the right of the state to regulate the economy. Other authors discuss the implications of these negotiations on future Chinese BITs and possible future multilateral treaties.
The collection ends with a discussion of the Trans-Pacific Partnership Agreement [TTIP], but unfortunately does not discuss China’s non-participation in those negotiations or China’s leadership in negotiating potentially rival regional agreements, including the Regional Comprehensive Economic Partnership [RCEP]. Nor does the collection examine in detail China’s Foreign Investment Law, which is under revision this year, or its implications for China’s BIT regime.
The book makes an important contribution to the recent literature on China’s role in the international investment law regime, which includes International Investment Law: A Chinese Perspective by Guiguo Wang (2014) and Chinese Investment Treaties: Policies and Practice by Wenhua Shan and Norah Gallagher (2009). It will be of use to students, academics, and practitioners alike in explaining China’s evolving participation in the international investment legal regime and likely future developments.
