 |
 |
> View this email in your browser > <http://us6.campaign-archive2.com/?u=ab15cc1d53&id=02d9d43cab&e=48966b4e8c> > 哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看： > http://www.ccsi.columbia.edu/content/fdi-perspectives. > *Columbia FDI Perspectives* > Perspectives on topical foreign direct investment issues by > the Vale Columbia Center on Sustainable International Investment > No. 128 August 18, 2014 > Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) > Managing Editor: Shawn Lim ([log in to unmask]) > *The China-EU BIT: The emerging "Global BIT 2.0"?* > <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=7eef92bf2f&e=48966b4e8c> > by > Wenhua Shan and Lu Wang* <#147ee22bd93414e6_147ea1479918d6f9__edn1> > > Since China and the European Union (EU) announced their decision to > negotiate a bilateral investment treaty (BIT) at the 14th China-EU Summit > in February 2012, the two sides have engaged in two rounds of negotiations. > If successful, it will be the first standalone EU BIT, a BIT between the > world's largest developed economy and the world's largest developing > economy, and will occupy a unique place in the history of BIT negotiations. > > Although there are currently BIT arrangements between China and all but > one EU member state, the China-EU BIT negotiations would involve far more > work than simply consolidating or “[streamlining] the existing BITs between > China and 26 EU Member States into a single and coherent text.”[1] > <#147ee22bd93414e6_147ea1479918d6f9__edn1> Indeed, it can be expected > that both parties would seize this opportunity to update and upgrade their > investment treaty arrangements, taking into account recent investment > treaty practices in general and those of the two parties in particular, > including their investment treaty/chapter negotiations with the United > States. The most challenging and promising issues are likely to be market > access and dispute resolution. > > It is well known that both China and EU members used to follow the > traditional “European” approach towards BIT, focusing on investment > protection without including concrete undertakings regarding investment > market access or liberalization. However, this approach seems to have > changed dramatically on both sides in recent years. The EU has been very > keen to promote investment market access as well as investment protection, > as demonstrated by the latest draft of the Comprehensive Economic and Trade > Agreement (CETA) between the EU and Canada, which accepts pre-establishment > national treatment on the basis of a negative list of reserved sectors.[2] > <#147ee22bd93414e6_147ea1479918d6f9__edn2> China also seems to have > accepted concrete market access obligations in BITs, as she has announced > acceptance of pre-establishment national treatment obligations and the > negative list approach in recent BIT negotiations with the United States. > [3] <#147ee22bd93414e6_147ea1479918d6f9__edn3> > > Against this background, it is possible that the China-EU BIT will contain > concrete market access commitments. Nevertheless, this is much easier said > than done, especially since both China and the EU (including its members) > have had little experience in making market access commitments in their > investment treaties.[4] <#147ee22bd93414e6_147ea1479918d6f9__edn4> The > preparation and negotiation of market access commitments are likely to take > significant time, since both sides have to assess whether and to what > extent each sector and industry is internationally competitive and should > be opened up to international investors.[5] > <#147ee22bd93414e6_147ea1479918d6f9__edn5> > > In recent treaty practice, both the EU and China have been active in > reforming investor-state dispute settlements (ISDS). Progress has been > made, for example, in the draft EU-Canada CETA which establishes "the most > progressive system" of ISDS, particularly by providing more details and > greater transparency, while improving control over frivolous claims.[6] > <#147ee22bd93414e6_147ea1479918d6f9__edn6> On the other hand, the > Canada-China BIT contains a relatively new provision requiring financial > prudential measures to be jointly decided by financial service authorities > of the contracting parties, or through the state-state arbitral mechanism. > [7] <#147ee22bd93414e6_147ea1479918d6f9__edn7> China and the EU share > many similar concerns regarding ISDS reform, such as refining the scope of > ISDS and state-state arbitration, and exploring the possibility of an > appeals mechanism. It is therefore possible that they will agree on a > progressive and innovative dispute settlement mechanism. > > In short, the China-EU BIT is likely to combine investment protection with > investment liberalization, while refining both substantive and procedural > rules and embracing social concerns, in order to achieve a better balance > between the rights of foreign investors and the regulatory needs of the > host country. Indeed, it may be the "Global BIT 2.0,"[8] > <#147ee22bd93414e6_147ea1479918d6f9__edn8> given that it will be the > first new generation BIT that the EU and China conclude on their own > initiative and is likely to significantly impact BIT practice worldwide. > [9] <#147ee22bd93414e6_147ea1479918d6f9__edn9> > > ------------------------------ > * <#147ee22bd93414e6_147ea1479918d6f9__ednref1> Wenhua Shan ( > [log in to unmask]) is the Ministry of Education Yangtze River Chair > Professor of International Economic Law, Dean of Law School and Director of > the Silk Road Institute for International and Comparative Law (SRIICL) at > Xi'an Jiaotong University, and Senior Fellow at the Lauterpacht Centre for > International Law, University of Cambridge; Lu Wang ([log in to unmask]) > is a PhD Candidate at Liverpool Law School and Xi'an Jiaotong University > Law School. The authors would like to thank Marc Bungenberg, Armand de > Mestral and an anonymous reviewer for their very helpful peer reviews. *The > views expressed by the author of this Perspective do not necessarily > reflect the opinions of Columbia University or its partners and supporters. > Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.* > [1] <#147ee22bd93414e6_147ea1479918d6f9__ednref1> European Commission, > “Commission proposes to open negotiations for an investment agreement with > China,” May 23, 2013, > http://europa.eu/rapid/press-release_IP-13-458_en.htm. > [2] <#147ee22bd93414e6_147ea1479918d6f9__ednref2> Draft CETA Investment > Text, November 21, 2013, arts. X.7 & X.14, available at > https://www.laquadrature.net/files/CETA-Draft-Investment-Text-Nov21-2013-203b-13.pdf > . > [3] <#147ee22bd93414e6_147ea1479918d6f9__ednref3> MOFCOM, “MOFCOM > spokesman Shen Danyang comments on China and US to promote energetically > negotiations on bilateral investment agreement,” July 16, 2013, > http://english.mofcom.gov.cn/article/newsrelease/policyreleasing/201307/20130700200566.shtml > . > [4] <#147ee22bd93414e6_147ea1479918d6f9__ednref4> Wenhua Shan and Sheng > Zhang, “The potential EU-China BIT: Issues and implications,” in Marc > Bungenberg et al., eds., *EU and Investment Agreements *(London: Hart > Publishing, 2013), pp. 102–104. > [5] <#147ee22bd93414e6_147ea1479918d6f9__ednref5>* Id*., at p. 104. > [6] <#147ee22bd93414e6_147ea1479918d6f9__ednref6> European Commission, > “Investment provisions in the EU-Canada free trade agreement”, December 3, > 2013, > http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf > <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4da6054b00&e=48966b4e8c> > . > [7] <#147ee22bd93414e6_147ea1479918d6f9__ednref7> China-Canada BIT > (2012), arts. 20(2)(b) and 33(3). A similar arrangement can be found in > NAFTA, art. 1415. > [8] <#147ee22bd93414e6_147ea1479918d6f9__ednref8> Wenhua Shan and Sheng > Zhang, “Market access provisions in the potential EU Model BIT: Towards a > ‘Global BIT 2.0’?” *Journal of World Investment and Trade* (forthcoming). > [9] <#147ee22bd93414e6_147ea1479918d6f9__ednref9> The EU member states, > with 1,400 BITs, have signed around half of the world’s BITs, and China has > the world's second largest BIT network (with over 130 BITs). Together, they > easily comprise the majority of the world's BIT stock. The European BIT > prototype has also been followed by the majority of countries in the world. > *The material in this Perspective may be reprinted if accompanied > by the following acknowledgment**: “Wenhua Shan and Lu Wang, ‘The > China-EU BIT: The emerging “Global BIT 2.0”?’ Columbia FDI Perspectives, > No. 128, August 18, 2014. **Reprinted with permission from the Columbia > Center on Sustainable Investment (www.ccsi.columbia.edu > <http://www.ccsi.columbia.edu>).” A copy should kindly be sent to the > Columbia Center on Sustainable Investment at [log in to unmask] > <[log in to unmask]>.* > For further information, including information regarding submission to the > *Perspectives*, please contact: Columbia Center on Sustainable > Investment, Shawn Lim, [log in to unmask] or [log in to unmask] > > The Columbia Center on Sustainable Investment (CCSI), a joint center of > Columbia Law School and the Earth Institute at Columbia University, is a > leading applied research center and forum dedicated to the study, practice > and discussion of sustainable international investment. Our mission is to > develop and disseminate practical approaches and solutions, as well as to > analyze topical policy-oriented issues, in order to maximize the impact of > international investment for sustainable development. The Center undertakes > its mission through interdisciplinary research, advisory projects, > multi-stakeholder dialogue, educational programs, and the development of > resources and tools. For more information, visit us at > www.ccsi.columbia.edu. > > *Most recent Columbia FDI Perspectives* > <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=f0ebed8314&e=48966b4e8c> > > > - No. 127, Alexandra Guisinger and Alisha Anderson, “ICSID, public > opinion and the effect of (hypothetical) elite messaging,” August 4, 2014. > - No. 126, Lise Johnson, “The Transparency Rules and Transparency > Convention: A good start and model for broader reform in investor-state > arbitration,” July 21, 2014. > - No. 125, Anna De Luca, “Withdrawing incentives to attract FDI: Can > host countries put the genie back into the bottle?” July 7, 2014. > - No. 124, Rafael Tamayo-Álvarez, Maria Alejandra Gonzalez-Perez and > Juan David Rodriguez-Rios, “How to enhance labor provisions in IIAs,” June > 23, 2014. > - No. 123, James Nicholson and John Gaffney, “Cost allocation in > investment arbitration: Forward toward incentivization,” June 9, 2014. > > *All previous FDI Perspectives are available at **http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/ > <http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/>**. * > Karl P. Sauvant, Ph.D. > Resident Senior Fellow > Columbia Center on Sustainable Investment > Columbia Law School - Earth Institute > Columbia University > 435 West 116th Street, Rm. JGH 645 > New York, NY 10027 > Ph: (212) 854-0689 > Fax: (212) 854-7946 > > Please visit our website - http://www.ccsi.columbia.edu > > For Karl P. Sauvant and Federico Ortino, *Improving the International > Investment Law and Policy Regime: Options for the Future*, and Karl P. > Sauvant and Victor Zitian Chen, "China's regulatory framework for outward > foreign direct investment,"*China Economic Journal*, vol. 7 (2014), pp. > 141-163, see the Center's website. > *Copyright © 2014 Columbia Center on Sustainable Investment > (CCSI), All rights reserved.* > [log in to unmask] > > *Our mailing address is:* > Columbia Center on Sustainable Investment (CCSI) > Columbia Law School - Earth Institute, Columbia University > 435 West 116th Street > New York, NY 10027 > > Add us to your address book > <http://columbia.us6.list-manage.com/vcard?u=ab15cc1d53&id=a61bf1d34a> > > > unsubscribe from this list > <http://columbia.us6.list-manage1.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=48966b4e8c&c=02d9d43cab> > update subscription preferences > <http://columbia.us6.list-manage1.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=48966b4e8c> > > > [image: Email Marketing Powered by MailChimp] > <http://www.mailchimp.com/monkey-rewards/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=monkey_rewards&aid=ab15cc1d53&afl=1> > ------------------------------ Spam <https://antispam.law.columbia.edu/canit/b.php?i=01MEzXgUW&m=af08d44c9c1f&t=20140819&c=s> Not spam <https://antispam.law.columbia.edu/canit/b.php?i=01MEzXgUW&m=af08d44c9c1f&t=20140819&c=n> Forget previous vote <https://antispam.law.columbia.edu/canit/b.php?i=01MEzXgUW&m=af08d44c9c1f&t=20140819&c=f> ____ AIB-L is brought to you by the Academy of International Business. For information: http://aib.msu.edu/community/aib-l.asp To post message: [log in to unmask] For assistance: [log in to unmask] AIB-L is a moderated list.