Investor-State Arbitration in China: A Comparative Perspective

Leon Trakman, Qiao Liu and Lei Chen, ‘Investor-State Arbitration in China: A Comparative Perspective’ in Lei Chen and André Janssen (eds) Dispute Resolution in China, Europe and World (Springer, 2020)

UNSW Law Research Paper No. 20-15

City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/014

36 Pages Posted: 5 Jun 2020 Last revised: 17 Nov 2020

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Qiao Liu

City University of Hong Kong (CityUHK) - School of Law

Lei Chen

Durham Law School

Date Written: April 1, 2020

Abstract

Notwithstanding China’s endorsement of investor-state arbitration (ISA) more than a decade ago, few investor claims have been initiated against it. These concerns are not peculiar to China. Economically and politically powerful states, not least of all the United States, are less frequently subject to ISA than poorer states for much the same reason. What is increasingly likely is that, China is preparing itself and its investors abroad for investor-state proceedings in the future. This is evident, for example, in China’s growing interest in the functioning of the International Center for the Settlement of Investment Disputes (ICSID), among other institutions, in its inclusion of ISA in its Model Bilateral Investment Agreement and in various regional and bilateral agreements it has concluded. China is now one of the biggest recipients of foreign investment in the world, as well as being a key player in outward foreign direct investment. In light of China’s rise in the foreign investment sphere and the consequence this may have on its engagement with investment claims, this Chapter has two primary purposes. The first purpose is to examine China’s limited experience with ISA under bilateral investment treaties (BITs). The second purpose is to identify how China is likely to develop its investor-state dispute resolution regime through strategic investment alliances with other states without sacrificing its distinctive national interests including those of its investors abroad.

Keywords: China, ISA, investor-state arbitration, arbitration, ICSID, Model Bilateral Investment Agreement, foreign investment, direct investment, bilateral investment treaties, BITs

Suggested Citation

Trakman, Leon and Liu, Qiao and Chen, Lei, Investor-State Arbitration in China: A Comparative Perspective (April 1, 2020). Leon Trakman, Qiao Liu and Lei Chen, ‘Investor-State Arbitration in China: A Comparative Perspective’ in Lei Chen and André Janssen (eds) Dispute Resolution in China, Europe and World (Springer, 2020) , UNSW Law Research Paper No. 20-15, City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/014, Available at SSRN: https://ssrn.com/abstract=3578298

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Qiao Liu

City University of Hong Kong (CityUHK) - School of Law ( email )

6/F, Lee Shau Kee Building
Kowloon, Shatin, New Territories
Hong Kong

Lei Chen

Durham Law School ( email )

Palatine Centre
South Road
Durham, DH1 3LE
United Kingdom

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