State-Owned Enterprises in the Current Regime of Investor-State Arbitration

Abstract

The rise of state-owned companies and sovereign wealth funds (together SOEs) poses many new questions for the regime of investor-state arbitration. Extant literature treats all SOEs the same and limits its focus to the doctrinal treatment of SOEs. This article, by studying Chinese SOEs, demonstrates the complexity of the structure and management of SOEs and their relations with the State. This paper constructs an analytic framework for properly treating SOEs under the current system. The four factor model (distance from the political centre, characteristics of state ownership, sector, and SOE leadership) may facilitate ICSID tribunals' decision-making with regard to the standing of SOE investors and the application of attribution rules.

Keywords: state-owned enterprises, sovereign wealth fund, investor-state arbitration, ICSID, investment arbitration, state capitalism, Chinese political economy, international arbitration