China’s approach in drafting the investor–state arbitration clause: a review from the ‘belt and road’ regions’ perspective

Zhang, Shu 2017, China’s approach in drafting the investor–state arbitration clause: a review from the ‘belt and road’ regions’ perspective, The Chinese journal of comparative law, vol. 5, no. 1, pp. 79-109, doi: 10.1093/cjcl/cxx005.

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Title China’s approach in drafting the investor–state arbitration clause: a review from the ‘belt and road’ regions’ perspective
Author(s) Zhang, ShuORCID iD for Zhang, Shu orcid.org/0000-0002-5940-8399
Journal name The Chinese journal of comparative law
Volume number 5
Issue number 1
Start page 79
End page 109
Total pages 31
Publisher Oxford University Press
Place of publication Oxford, Eng.
Publication date 2017-03
ISSN 2050-4802
2050-4810
Keyword(s) investment treaty
investor state arbitration
China
policy
One Belt and One Road
development
Summary Investor-State arbitration (ISA) is now a hot topic in China and among its trade and investment partners. The number of ISA cases is still small, and doubts are still widespread at the policy-making level and among scholars. In particular, the drafting and practice of China’s ISA clauses is not flawless in supporting investors in ISA or in defending their national interests as a host country. This article aims to review the main aspects of China’s approach in drafting ISA clauses in the context of the One Belt, One Road Initiative (OBORI). It reviews ISA clauses in bilateral investment treaties and other international investment agreements between China and the One Belt and One Road (OBOR) region countries and discusses the relevant legal issues and controversies.Issues covered include: different generations of ISA clauses, the scope of arbitrable disputes, applicable law, the choice of arbitration institutions, procedural arrangements, the enforcement of arbitral awards, the impact of transition clauses, and so on. Based on the review and analysis of these issues, divergence is identified in the currently existing ISA clauses between China and the OBOR regions, although some degree of policy convergence can be found in a few of the most recent international investment agreements.It is both a challenge and an opportunity for China to learn from its previous experience with ISA clauses and to integrate its treaty-making approach in the context of the OBORI. A more adaptable Model ISA clause and a more consistent approach to the drafting of ISA clauses would benefit both China and its trade and investment partners.
Language eng
DOI 10.1093/cjcl/cxx005
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Persistent URL http://hdl.handle.net/10536/DRO/DU:30102861

Document type: Journal Article
Collection: Law
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