Introduction to the Special Issue on State-Owned Enterprises

Abstract

This first Special Focus Issue marks the 50th Anniversary of the International Centre for Settlement of Investment Disputes (ICSID). There has been significant development in investment treaty law since the ICSID Convention was signed in 1965. One such recent development is the increasing amount of investment being conducted by State-owned enterprises (SOEs). The scale of foreign investment by SOEs has attracted attention. As yet the commentary is limited. Auspiciously, the ICSID Review is celebrating 30 successful years in providing insightful and current commentary on investment evolution and important developments. It is for this reason that this Special Issue is focused on SOEs.

State-owned enterprises are not a new phenomenon with in the landscape of world investment, but they have never attracted as much attention as they do today. The rapid increase of SOE investments from emerging economies, at a time of global economic downturn, has been met with mixed reactions. In some cases, it has been warmly welcomed while in others these large investments are viewed with deep suspicions and concerns, particularly national security and competition distortion concerns. Some States have strengthened their foreign investment review mechanism or have designed a policy framework of competitive neutrality in order to respond to the perceived challenges of SOE investments. Internationally, SOEs are increasingly becoming an important issue in major treaty negotiations, such as the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and the China–US bilateral investment treaty (BIT) talks.

Notably, the newly released TPP text includes an entire chapter on SOEs, which sets a blueprint for future BIT and free trade agreement negotiations. Nonetheless, the question of whether, and to what extent, SOE investments should be regulated by international investment treaties remain a real and challenging question of international law. The question touches upon the standing of SOEs in investment dispute resolution as well as substantive protections or regulations of SOEs in international investment treaties. Given the active role of SOEs in certain sectors (such as the energy sector) and the special concerns of SOEs from certain regions (such as China), it is hoped that a focused study will undoubtedly provide important insights on some of these SOE issues. The aim is to inform international and domestic policy design on SOE investment regulations in the future.

Keywords: ICSID anniversary; State-owned enterprises (SOEs); international investment agreements; international arbitration

JEL Classification: K33