On Territoriality and International Investment Law: Applying China’s Investment Treaties to Hong Kong and Macao

Abstract

In a recent ruling, the Singapore High Court (SGHC) decided to set aside an arbitration award on the basis that the China-Laos bilateral investment treaty does not apply to Macao, a special administrative region of China. This ruling raises a number of interesting issues for the territorial application of investment treaties in general and Chinese investment treaties in particular. Moreover, this ruling is important inasmuch some might urge to proclaim it conclusive for the inapplicability of Chinese investment treaties to both Hong Kong and Macao. Within this context, this article finds that the SGHC overlooked the temporal effect of subsequent agreements to concluded investor-state arbitrations, and on the same time did not adequately explain the effect of devolution agreements on third parties and the impact of the ever expanding parallelism of China’s investment ‘treatification’. In addition, treaty practice on the territorial extension of investment treaties is likely not supportive of the SGHC’s findings, although an analogy with succession and secession cases may suggest otherwise. On balance, this article finds that state practice on the territorial application of investment treaties, along with the circumstances inherent to the case in hand, suggests that the application of Chinese investment treaties to Hong Kong and Macao is still not conclusively determined, even after the ruling of the SGHC.

Keywords: Territoriality, territory, Sanum v. Laos, China-Laos BIT, application of China's IIAs to Hong Kong and Macao, Vienna Convention on Succession of States in Respect of Treaties (VCST), Devolution Agreements, Joint Declarations, Hong Kong Basic Law, Macao Basic Law, Singapore High Court