Trakman, Leon --- "China and Foreign Direct Investment: Looking Ahead" [2013] UNSWLRS 24

Last Updated: 4 April 2013

China and Foreign Direct Investment: Looking Ahead

Leon Trakman, University of New South Wales


This paper is available for download at Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2244634

Citation

This paper may be referenced as [2013] UNSWLRS 24.

Abstract

Notwithstanding China’s endorsement of investor-state arbitration more than a decade ago, few investor claims have been initiated against it and none has concluded with an award. This does not necessarily mean that foreign investors will not make such claims in the future, but rather that proceeding against China, from an economic rationalist perspective, is likely to be contentious, costly and dilatory. However, these concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to investor-state arbitration than poorer states for much the same reason.

What is increasingly likely is that China is preparing itself and its investors abroad for investor-state proceedings in the future. This is evident, for example, in China’s growing interest in the functioning of the International Center for the Settlement of Investment Disputes (‘ICSID’), in its inclusion of investor-state arbitration in its Model Bilateral Investment Agreement and in various regional and bilateral agreements it has concluded.

China is overtaking the United States as the biggest recipient of foreign direct investment (‘FDI’) in the world. It is also one of largest sources of outward FDI, with its outward investors initiating large-scale claims against foreign governments, such as Ping An, China’s second largest insurer’s recent claim for USD 2.2 billion against the Belgian Government In light of China’s rise in the FDI and the consequence this may have on its engagement with investment claims, this paper has three primary purposes. The first purpose is to explore China’s history and practice in concluding bilateral investment agreements (‘BITs’) with foreign countries. The second purpose is to examine China’s limited experience with investor-state arbitration under such BITs. The third purpose is to identify how China is likely to develop its dispute resolution regime through strategic investment alliances with other states without sacrificing its distinctive national interests including those of its investors abroad. Particular emphasis will be given to China’s dilemma, in seeking to liberalize investment treaties to protect growing outbound investments, while also trying to protect its national interest from arbitration claims by inbound investors.