International Investment Law: A Chinese Perspective Increasing and intensified cross-border economic exchange such as trade and investment is an important feature of globalization In the past, a distinction could be made between capital importing and exporting countries, or host and home countries for foreign direct investment (“FDI”) Due to globalization, FDI is presently made by and in both developed and developing countries Differences in political, economic, and legal systems and culture are no longer obstacles for FDI, and to varying degrees the economic development of almost all countries is closely linked with the inflow of FDI This book conducts critical assessments of aspects of current international law on FDI, focusing on cases decided by the tribunals of the International Centre for Settlement of Investment Disputes (“ICSID”) and other tribunals, as well as decisions of annulment and ad hoc Committees of the ICSID In examining such cases, Guiguo Wang takes into account the Chinese culture and China’s practice in the related areas The book explores topics including: the development and trend of international investment law; unilateral, bilateral, and multilateral mechanisms for encouraging and protecting FDI; determination of qualified investors and investments and consent as conditions for protection; relative and absolute standards of treatment; determination of expropriation in practice; assessment of compensation for expropriation; difficulties in enforcing investment arbitral awards; and alternatives for improving the existing system The book will be of great use and interest to scholars, practitioners, and students of international investment law and international economic law, Asian law, and Chinese studies Guiguo Wang is Chair Professor of Chinese and Comparative Law and Director of the Centre for Judicial Education and Research at the City University of Hong Kong Routledge Research in International Economic Law Recognition and Regulation of Safeguard Measures Under GATT/ WTO Sheela Rai Foreign Direct Investment and Human Development The Law and Economics of International Investment Agreements Olivier De Schutter, Johan Swinnen and Jan Wouters The Interaction between WTO Law and External International Law The Constrained Openness of WTO Law Ronnie R.F Yearwood Microtrade A New System of International Trade with Volunteerism Towards Poverty Elimination Yong-Shik Lee Human Rights, Natural Resource and Investment Law in a Globalised World Shades of Grey in the Shadow of the Law Lorenzo Cotula Science and Technology in International Economic Law Balancing Competing Interests Bryan Mercurio and Kuei-Jung Ni Available: The Domestic Politics of Negotiating International Trade Intellectual Property Rights in US-Colombia and US-Peru Free Trade Agreements Johanna von Braun Foreign Investment and Dispute Resolution Law and Practice in Asia Vivienne Bath and Luke Nottage (eds.) Improving International Investment Agreements Armand De Mestral and Céline Lévesque (eds.) Public Health in International Investment Law and Arbritration Valentina Vadi The WTO and the Environment Development of Competence beyond Trade James Watson The WTO and Infant Industry Promotion in Developing Countries Perspectives on the Chinese Large Civil Aircraft Juan He Trade Remedies A Development Perspective Asif Qureshi International Investment Law: A Chinese Perspective Guiguo Wang Forthcoming: Culture and International Economic Law Valentina Vadi and Bruno de Witte Equity and Equitable Principles in the World Trade Organization Addressing Conflicts and Overlaps between the WTO and Other Regimes Anastasios Gourgourinis International Investment Law: A Chinese Perspective Guiguo Wang First published 2015 by Routledge Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Guiguo Wang The right of Guiguo Wang to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Wang, Guiguo, author A Chinese perspective on international law / Guiguo Wang pages cm (Routledge research in international economic law) Includes index ISBN 978-0-203-73868-9 (hbk) ISBN 978-0-415-50003-6 (ebk) Investments, Foreign Law and legislation China I Title KNQ3202.W359 2014 346.51’092 dc23 2014007760 ISBN: 978-0-415-50003-6 (hbk) ISBN: 978-0-203-73868-9 (ebk) Typeset in 10/12 Baskerville MT by Servis Filmsetting Ltd, Stockport, Cheshire Contents Foreword Preface Table of Cases ix xi xiii International investment and law I A brief history of international investment II Impacts of national laws on investment III International legal regimes IV Features of contemporary international investment law A Cross-application of treaty and national law B Precedential effect of previous decisions C Emphasis on preambles D Formation of case law 1 15 19 19 22 23 28 The control system pertinent to direct foreign investment I The insurance system for foreign investment A The national insurance system B The multilateral insurance system II The bilateral protection system III The ICSID dispute settlement system A ICSID arbitration mechanisms B Annulment procedure under the ICSID mechanism 32 32 33 37 49 61 62 64 Determination of foreign investors I Qualified investors as a jurisdictional issue II Piercing the corporate veil of foreign investors III Jus standi: indirect investors and minority shareholders IV Denial of benefits V China’s practice relating to investors VI Conclusions 88 89 99 112 126 135 139 vi International Investment Law: A Chinese Perspective Determination of foreign investments I Searching for a definition of investment II The double-barreled test and contribution to economic development for qualified investment in ICSID arbitration III Additional criteria for qualified investments A Investments made in compliance with law and in good faith (“bona fide”) B Investments made “in the territory” of the host state IV Commercial arbitration awards and investments V China’s treaty practice on determination of foreign investment VI Conclusions 142 144 Consent as a condition of jurisdiction I Determination of consent II Effective time of consent III The fork in the road IV Exhaustion of local remedies V China’s treaty practice 212 213 231 235 251 258 The absolute standards of treatment I Fair and equitable treatment A The concept of FET B Contents of FET II Full protection and security III The umbrella clause IV China’s practice on absolute standards of treatment 263 264 264 278 308 315 329 The relative standards of treatment I The history of the MFN clause and the applicable interpretation principles A The history of MFN treatment B Principles of interpretation II MFN jurisprudence relating to investment A Cases supporting extension of the MFN clause to dispute resolution procedures B Cases opposing extension of the MFN clause to dispute resolution procedures III National treatment in investment A Status of NT in investment treaties B Competition as a necessary condition for like circumstances C Liberal interpretation of like circumstances D The principle of judicial/arbitral economy E Determination of less favourable treatment IV China’s practice regarding MFN and national treatment V Synthesis and conclusions 334 164 176 176 186 190 202 209 335 335 339 344 345 353 360 360 363 367 369 372 376 380 Contents vii Expropriation I Expropriation and pertinent conditions II Indirect expropriation III Defense of indirect expropriation and conditions IV The Chinese practice Annexes 388 390 404 419 430 437 Compensation for violation of obligations I The basic issues regarding compensation for expropriation II Normative provisions of international instruments III International judicial and arbitral practice IV The power of tribunals in cases of non-expropriatory breaches V Fair market value as the standard of compensation for nonexpropriatory breaches VI Actual losses suffered and benefits denied as benchmark VII Compensation for moral damages VIII Conclusions and alternatives A FMV as the standard for expropriatory measures B Varied standards adopted for non-expropriatory breaches C Alternatives for improvement 449 449 452 458 467 472 482 494 498 498 499 501 10 State responsibility and enforcement of obligations I Attribution of state responsibility II Efforts to codify the principle of sovereign immunity III Evolution of national laws regarding sovereign immunity A Absolute sovereign immunity B Restricted sovereign immunity C Laws on sovereign immunity IV National practices relating to execution of investment awards A The US practice B The UK practice C The French practice V The Chinese perspective 508 510 521 530 530 534 536 543 546 550 552 555 11 Conclusions and alternatives 560 Index 575 This page intentionally left bank Foreword Every legal arrangement is always under pressure for change The content of each arrangement reflects the shared interests of those who have shaped it As soon as an arrangement is installed, it begins to be tested and challenged—not only by those who never benefited from it, but even by actors within the entities and communities which established and participated in the arrangement if they come to believe that their own interests are insufficiently served or have changed and especially if those actors have since acquired more power Thus law, for all its pretensions to being stable and unchanging, is actually a continuously dynamic dialectical process of agreement, challenge, adjustment, accommodation, new agreement, new challenges—ad infinitum This dialectic is particularly dramatic in contemporary international economic law Thanks to the globalization of the world economy and the imperative compelling all governments to secure the economic development and enhancement of life opportunities for their constituents, we witness the creation of specialized international institutions, rapid developments in bilateral, regional, and multilateral conventional international law and the proliferation of publicly accessible third-party decisions Nowhere is this dynamic more pronounced than in international investment law All states now vie for foreign investment and the reasons are hardly recondite China, pre-1978, demonstrated, by example, the virtual impossibility of autochthonous economic development; China, post-1978, demonstrated, again by example, the contribution which direct foreign investment can make to rapid national economic development But it is not only governments that are impelling the dynamism in this area of law: profit-maximizing entities worldwide are driven by their own economic imperatives to seek venues for foreign investment, whether for natural resources, more efficient venues for production or markets for their products We are not speaking of a few actors There are approximately 80,000 multinational enterprises, which are, by definition, foreign direct investors In turn, these entities have some 100,000 affiliates Add to that the almost 3000 bilateral and multilateral investment treaties and the hundreds of investment arbitrations each year and one can begin to appreciate the inter-stimulating factors propelling the velocity of change in this area of international law Inevitably, this has had consequences for the sociology of legal knowledge In 572 International Investment Law: A Chinese Perspective Currently, services and investments overlap with each other and an increasing number of BITs and FTAs regulate both subjects without making a distinction between them As such, investment arbitration tribunals often find it necessary to refer to WTO decisions If the WTO Appellate Body were entrusted to hear investment-related appeals, that would help make its analysis and reasoning on services convergent with that on investment In the end, both international trade in services and foreign direct investment would be encouraged Enforcement of arbitral awards is another thorny issue requiring a solution As discussed earlier, the losing host states understandably try all means not to enforce the awards that are not in their favor Although the ICSID has its own recognition and enforcement system, which depends to a large extent on the willingness of the host states, there is no mechanism to force a losing state to implement an arbitral award As for the awards made by other arbitration bodies which have no self-contained enforcement mechanisms, their enforcement may be accomplished, arguably, through the operation of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards In practice, however, attempts to seize the property of a losing state to enforce an investment arbitral award is very difficult, if it is possible at all In the end, the winning party has to rely on the goodwill of the losing host state Compared with the retaliation mechanisms under the WTO—although these are not entirely satisfactory, either—the enforcement mechanism relating to investment arbitration requires much improvement As discussed elsewhere, the international community should consider creating a system where the interests of both investors and host states can be better protected.33 For instance, WTO members might be encouraged to have their FTAs and BITs stipulate that arbitration awards in investment disputes may be appealed to the Appellate Body of the WTO for review Once the Appellate Body has made a ruling, that ruling could be enforced by the host state, failing which, the member that is the home country of the investor could be entitled to substitute for the investor and to request retaliation in accordance with the WTO process—that is, cross-retaliation between trade and investment Above all, no matter how good a system may be on paper, its effectiveness still depends on the quality of those who operate it—in the case of international investment law, arbitrators and ad hoc annulment Committee members No serious challenge has been made so far with regard to the ethical standards of the arbitrators who make up investment tribunals It therefore can be assumed that mistakes that may have been made by tribunals relate to other aspects of arbitration, including knowledge of the subject matter, arbitration skills and experience, and understanding of the culture and political and legal systems of the host states Where a tribunal, or the majority of a tribunal, lacks any of these elements, the 33 For a fuller discussion of this issue, see Guiguo Wang, “Radiating Impact of WTO on Its Members’ Legal System: The Chinese Perspective,” Collected Courses of The Hague Academy of International Law, Vol 349, Martinus Nijhoff Publishers, 2010, pp 525–35 Conclusions and alternatives 573 award rendered may reflect such shortcomings, although not all of them may result in serious mistakes that require rectification The lack of the required knowledge, experience, and cultural understanding on the part of arbitrators is due to the current practice that arbitrators grow by themselves To cope with this situation, it is submitted that education programs should be organized by arbitration institutions, such as the ICSID, which could be in the form of seminars, workshops, and even degree programs Currently, conferences are held not infrequently, but they are mostly intended for the purposes of business promotion, and the exchange of experiences becomes secondary The seminars, workshops or other programs suggested here should be aimed at educating the participants and sharing practical arbitration experiences, especially lessons learned With continuous efforts in educating existing and future arbitrators, together with the possibility of introducing other alternatives discussed above, it can be hoped that international investment law will achieve its objectives This page intentionally left bank Index Abs/Shawcross Convention 406, 438 Agreement for Promotion, Protection and Guarantee of Investments among the Member States of the Organization of the Arab States 408, 439, 444 Agreement on Investment and Free Movement of Arab Capital among Arab Countries 438 Agreement on the Free Trade Area of the Americas 382 Andreeva, Yulia; on interpretation of treaties 261 anti-trust laws; impact on FDI 12 arbitrariness 84, 245, 267, 285; Mann’s opinion 316 Argentina–Chile BIT 349–352 Argentina–France BIT 235–236, 313–314, 427 Argentina–Germany BIT 348–349, 352, 369 Argentina–Italy BIT 121, 189, 254, 256, 350 Argentina–Spain BIT 231, 347, 427 Argentina–United Kingdom BIT 313 ASEAN Agreement for the Promotion and Protection of Investments 440, 444 ASEAN Comprehensive Investment Agreement 144, 168, 447, 452–453 Australia–India BIT 200 Azerbaijan–Finland BIT 144 balance of payments; impact on FDI 11 Bangladesh–Italy BIT 194 Banking Ordinance of Hong Kong 11–12 Basic Law of Macao SAR 568 bilateral investment treaties (BITs); definition of investment 144–164; denial of benefits 126–135; third-party ownership 130; see also specific BITs, FTAs and IIAs which provide for denial of benefits (e g DR-CAFTA, denial of benefits); “fair and equitable” treatment 264–308; see also “fair and equitable” treatment; international investment agreements, “fair and equitable” treatment; investment, standards of treatment, absolute standards, “fair and equitable” treatment; investors, standards of treatment, absolute standards, “fair and equitable” treatment; “full protection and security” 308–315; see also “full protection and security”; international investment agreements, “fair and equitable” treatment; investment, standards of treatment, absolute standards, “full protection and security”; investors, standards of treatment, absolute standards, “full protection and security”; interpretation see interpretation of treaties; see also Vienna Convention on the Law of Treaties; MFN clauses 335–385, 564; see also most-favourednation treatment; international investment agreements, MFN clauses; investment, standards of treatment, relative standards, most-favoured nation treatment; investors, standards of treatment, relative standards, mostfavoured-nation treatment; national treatment 10, 17–18, 54, 330, 334, 360, 360–376; see also national treatment; international investment agreements, national treatment; investment, standards of treatment, relative standards, national treatment; investors, standards of treatment, relative standards, national treatment; “object 576 International Investment Law: A Chinese Perspective bilateral investment treaties (BITs) (cont.) and purpose” 23–27, 101–102; statistics 4–5; “umbrella” clauses 78, 315–328, 331–332; Brower’s opinion 316; Dolzer and Stevens’ opinion 316; effect on breaches of contract 321; Mann’s opinion 316; origins 315; Weil’s opinion 315; see also free trade agreements; international investment agreements; specific BITs (e.g Germany–Philippines BIT); see also international investment arbitration BITS see bilateral investment treaties breach of contract; as breach of BIT 120, 190, 519–520; effect of umbrella clauses 316; insurance coverage, MIGA 37; see also expropriation, insurance coverage; political risk insurance Broches, Aron; on nationality of investors under the ICSID Convention 99–100 Brower, Charles N; on umbrella clauses 316 Brunei–Japan Economic Partnership Agreement 145 Bulgaria–Cyprus BIT 355 Canada–Costa Rica BIT 184–185 Canadian State Immunity Act 542 central banks 28; see also US Federal Reserve Bank Charter of Economic Rights and Duties of States 390, 431 China; bilateral investment treaties; history 51–55; investor–State dispute settlement provisions in 16, 202–209, 272, 379; see also specific BITs to which China is a party; free trade agreements; history 55–61; investor–State dispute settlement provisions in 55–56, 59–61; see also specific FTAs to which China is a party (e.g China–ASEAN FTA); laws on foreign investment; history 51–52; see also specific Chinese laws (e.g Chinese-Foreign Joint Venture Law); practice relating to enforcement of foreign arbitral awards 555–559; practice relating to expropriation 430–433, 435–437; compensation 53–57,430–433; indirect expropriation 433–434; practice relating to “fair and equitable” treatment 330–333; practice relating to “full protection and security” 330–332; practice relating to investment 202–209; see also specific issues relating to investment (e.g investment, definition and elements, Chinese practice); practice relating to investors 135–139; see also specific issues relating to investors (e.g investors, definition and identification, Chinese practice); practice relating to jurisdiction of arbitral tribunals 258– 262; practice relating to most-favourednation treatment 376–380, 384–385; practice relating to national treatment 376–380; practice relating to sovereign immunity 331–332; practice relating to umbrella clauses 555–559 China–Argentina BIT 234 China–ASEAN FTA 56 China–ASEAN Investment Agreement 441, 448, 456 China–Benin BIT 207 China–Canada BIT 258–260 China–Finland BIT 138, 209, 330, 377–378, 433 China–France BIT 376 China–Germany BIT 137, 204–207, 329–330, 376–377, 433 China–India BIT 434 China–Kuwait BIT 137 China–Laos BIT 569–570 China–New Zealand FTA 56, 59–61, 138, 141, 205–208, 258, 260, 330–331, 379–380, 383, 435,457; definition of investment 205; denial of benefits 138; expropriation 435; compensation 457 China–Norway BIT 135–136, 203–204, 430 China–Pakistan FTA 56, 59, 205–207, 379–380 China–Peru BIT 223, 240–241, 258–260 China–Portugal BIT 137, 329–330, 377, 433 China–Russia BIT 330, 433 China–Spain BIT 330, 433 China–Switzerland BIT 377–378 China–United Kingdom BIT 204, 331, 376 Chinese-Foreign Joint Venture Law 52–53, 136, 203; see also China, laws on foreign investment Chorzów principle see compensation, for expropriation, Chorzów principle; compensation, for non-expropriatory breaches, Chorzów principle Index Christie, G.C.; on indirect expropriation 404, 410–411 COMESA Investment Agreement see Investment Agreement for the Common Market for Eastern and Southern Africa (COMESA) Common Investment Area commercial arbitration awards; domestic courts holding “supervisory jurisdiction” over 196–197; see also investment, commercial arbitration awards as investment communication and information technology; impact on international investment law 15 compensation; for expropriation 449–467; “appropriate” compensation 458; Chorzów principle 463–465; “discounted cash flow” valuation 454; “fair market value” 433, 451–457, 460–461, 467–468, 469–470, 472, 474–477; “Hull formula” 431–432; Schacter’s opinion 451; restitution 463, 466, 468–469, 473–474, 500–502; for moral damages 494–497, 504–505; principle of equity 495; for non-expropriatory breaches 468–507; “but for” approach to valuation 488–489; Chorzów principle 463–465; “discounted cash flow” valuation 471–475, 477, 481–484, 499–504, 506–507; tort standard 487–488; valuation on basis of actual losses and or benefits denied 482–484, 494; see also “damnum emergens”; “lucrum cessans”; specific BITs, FTAs and IIAs consent to arbitration see international investment arbitration, party consent; ICSID Convention, party consent to arbitration; Energy Charter Treaty, party consent to arbitration Convention Establishing the Multilateral Investment Guarantee Agency see MIGA Convention Convention for the Mutual Protection of Property 437 Convention on Combating Bribery of Foreign Public Officials in International; Business Transactions 14 Costa Rica–Germany BIT 403 Crawford, James; on State organs 512 creeping expropriation see expropriation, indirect expropriation cross-border mergers and acquisitions 577 currency convertibility; MIGA 41; OPIC 33, 35; see also exchange rate regimes currency transfers see currency convertibility customs and tariff laws; impact on FDI 13 Cyprus–Hungary BIT 398 damages; double compensation 121 “damnum emergens” 449, 464–467; see also compensation DCF valuation see compensation, for expropriation, “discounted cash flow” valuation; compensation, for nonexpropriatory breaches, “discounted cash flow” valuation Declaration on the Establishment of a New Economic Order 391, 439 Delaume, Georges R.; on the concept of “investment” in the ICSID Convention 147, 214; on party consent to arbitration under the ICSID Convention 254 denial of benefits see bilateral investment agreements, denial of benefits; international investment agreements, denial of benefits; see also specific BITs and IIAs which provide for denial of benefits (e g DR-CAFTA, denial of benefits) denial of justice as basis of investment disputes 290; see also “fair and equitable” treatment, contents, denial of justice DiMascio, Nicholas and Pauwelyn, Joost; on balancing rights of investors and rights of States in investor–State dispute resolution 387 “discounted cash flow” valuation see compensation, for expropriation, “discounted cash flow” valuation; compensation, for non-expropriatory breaches, “discounted cash flow” valuation discrimination see “fair and equitable” treatment, contents, non-discrimination; national treatment disguised expropriation see expropriation, indirect expropriation Dolzer, Rudolf; on indirect expropriation 405, 434 Dolzer, Rudolf and Stevens, Margrete; on “fair and equitable” treatment 275; on umbrella clauses 316 578 International Investment Law: A Chinese Perspective domestic courts; abuse of powers in commercial/investment disputes 196–197; as holders of “supervisory jurisdiction” over commercial arbitrations 196 DR-CAFTA; denial of benefits 126–128; “substantial business activities” 127–128; third-party ownership 128; “fair and equitable” treatment 282–284 Draft Articles on Jurisdictional Immunities of States and their Property 526 Draft Convention on State Immunity 524 Draft Havana Charter 437 Draft International Regulations on the Jurisdiction of Courts in Proceedings against Foreign States, Sovereigns or Heads of States 522 Draft Multilateral Agreement on Investment 440, 446 ECT see Energy Charter Treaty Ecuador–United States BIT 476, 485–486 Egypt–United Kingdom BIT 323–324 Egyptian Civil Code 471 El Salvador Investment Law 215 Energy Charter Treaty 4, 17–19, 130–132, 161–163, 180, 212, 264, 285, 330, 361, 398–400, 408, 440, 445, 452, 510; compensation 452–453; definition of investment 161, 180; denial of benefits 126–134; “substantial business activities” 127, 129–134; third-party ownership 130; expropriation 391, 398–400, 408, 440, 445; “fair and equitable” treatment 264; most-favoured-nation treatment 361; national treatment 361; party consent to arbitration 212, 215 enforcement of arbitral awards see international investment arbitration, enforcement of awards European Convention on Human Rights 391, 425 437 European Convention on State Immunity 528–529 European Court of Human Rights 22, 28, 393, 424–427, 461 European Free Trade Area (EFTA)– Mexico FTA 144 exchange rate regimes 9, 43; see also currency convertibility exhaustion of local remedies see “fair and equitable” treatment, contents, denial of justice, exhaustion of local remedies; ICSID Convention, exhaustion of local remedies; international investment arbitration, exhaustion of local remedies expropriation 388–448; compensation see compensation, for expropriation; conditions for “legal” expropriation 390–404; due process 391, 395–401, 407, 421, 435, 438–447; nondiscrimination 391, 393–395, 430; payment of compensation 439–448; public interest 388–389, 391–393, 398–399, 400–403, 408–409, 426, 429, 433–434, 437–440, 444–448; Reisman and Sloane’s opinion 392; exercise of “police powers” 401, 411, 419–420, 422–425, 428–430, 447; “proportionality test” 425–429; see also expropriation, indirect expropriation; international investment arbitration, balancing rights of investors with rights of States; “illegal” expropriation see expropriation, unlawful expropriation; indirect expropriation 404–430; Christie’s opinion 410–411; definition 404–408; Dolzer’s opinion 404–405, 434; Reisman and Sloane’s opinion 404, 416, 427; role of “specific commitments” in determining indirect expropriation 421; “sole effects doctrine” 412–415; “substantial deprivation” 413–415, 423–424, 429; Stern’s opinion 405; see also expropriation, exercise of police powers; insurance coverage 14, 34, 48; see also breach of contract, insurance coverage; political risk insurance; States’ right to expropriate 390–391; statistics 388; unlawful expropriation 395–398, 401–403, 422, 463–465, 498–499 “fair and equitable” treatment, 264–308; contents 278–308; denial of justice 290–296; denial of access 292–; “effects test” 291; exhaustion of local remedies; see also ICSID Convention, exhaustion of local remedies; international investment arbitration, exhaustion of local remedies; undue delay 291–293; due process 279–281, 283–285, 291, 296; investors’ legitimate expectations 296, 298–308; non-discrimination 285–290; “effects test” 286–287; requirement of “in like circumstances” Index 287–289; see also national treatment; procedural fairness 280–285; stability of the business and legal framework 296–308; relationship to “full protection and security” 308; transparency 289– 290; Mann’s opinion 275; relationship to “full protection and security” 314–315; relationship to the international law minimum standard of treatment of aliens 265–278, 289–296; Dolzer and Stevens’ opinion 275; Schreuer’s opinion 278; three-step analysis 279; see also bilateral investment treaties, “fair and equitable” treatment; denial of justice; international investment agreements, “fair and equitable” treatment; investment, standards of treatment, absolute standards, “fair and equitable” treatment; investors, standards of treatment, absolute standards, “fair and equitable” treatment “fair market value” see compensation, for expropriation, “fair market value”; compensation, for non-expropriatory breaches, “fair market value” FDI see foreign direct investment foreign direct investment; elements of 16; factors influencing decision-making 7; history 1–6; home countries 1, 3–4; host countries 1, 3–4; measures to encourage 9–10; restrictions on 7–8, 11–13 “fork in the road” see investor–State dispute resolution, forum, the “fork in the road” forum selection see investor–State dispute resolution, forum; see also investor–State dispute resolution, parallel proceedings Framework Agreement on the Association of Southeast Asian Nations Investment Area 144 free trade agreements; definition of investment 144–145; denial of benefits 138; see also specific BITs, FTAs and IIAs which provide for denial of benefits (e g DR-CAFTA, denial of benefits); see also bilateral investment treaties; international investment agreements; specific FTAs (e g DR-CAFTA) “full protection and security” 308–315; origins 308–309; relationship to “fair and equitable” treatment 314–315; relationship to stability of the business and legal framework 315; see also bilateral investment treaties, “full 579 protection and security”; international investment agreements, “full protection and security”; investment, standards of treatment, absolute standards, “full protection and security”; investors, standards of treatment, absolute standards, “full protection and security” Gaillard, Emmanuel; On the concept of “investment” in the ICSID Convention 143, 150–151, 157 GATS see General Agreement on Trade in Services GATT see General Agreement on Tariffs and Trade General Agreement on Tariffs and Trade 18 General Agreement on Trade in Services (GATS) 18, 379 Generalized System of Preferences (GSP) 13 “genuine link” test of nationality see investors, definition and identification, “genuine link” as test of nationality Germany–Namibia BIT 361 Germany–Philippines BIT 20, 177–179 globalization; impact on FDI 1, 16, 30–31 “good faith” 20–21, 176–186, 374–375 Greece–Albania BIT 242 Greece–Georgia BIT 400–402 GSP see Generalized System of Preferences Harvard Draft Convention on International Responsibility of States for Injuries to Aliens 406, 438, 442 Havana Charter see Draft Havana Charter holding companies 98, 128, 140 Hong Kong investors in China 138 “Hull formula” see compensation, for expropriation, “Hull formula” ICC see International Chamber of Commerce ICC Guidelines for International Investment 438 ICC International Code of Fair Treatment for Foreign Investment 437 ICSID see International Centre for Settlement of Investment Disputes ICSID Convention 19; definition of investment; Delaume’s view 147; Gaillard’s view 143, 150–151,157; in Article 25 26, 142, 146–150, 152–154, 580 International Investment Law: A Chinese Perspective ICSID Convention (cont.) 156–159, 163, 164–167, 172–173, 192–193; in the Preamble 26, 170, 175; see also investment, definition and elements; definition of investor; in Article 25(2)b 216; see also investors, definition and identification; enforcement of awards 544–546; Schreuer’s opinion 545; see also international investment arbitration, enforcement of awards; exhaustion of local remedies 251–257; see also “fair and equitable” treatment, contents, denial of justice, exhaustion of local remedies; international investment arbitration, exhaustion of local remedies; jurisdiction of ICSID; “competence-competence” rule 220; in Article 25(1) 60, 146; disputes “arising directly out of an investment” 63, 194; see also International Centre for Settlement of Investment Disputes; investor–State dispute resolution, jurisdiction; party consent to arbitration 212–213; Delaume’s view 214; statistics 19 ICSID Rules of Procedure for Arbitration Proceedings 19 IIAs see international investment agreements “illegal” expropriation see expropriation, unlawful expropriation “in dubio mitius” 317 India–Kuwait BIT 200 indirect expropriation, see expropriation, indirect expropriation indirect investments 147–149 Institut de Droit International 522–523 International Bank for Reconstruction and Development see World Bank International Centre for Settlement of Investment Disputes (ICSID) 19; investor–State dispute resolution; annulment of tribunal awards 64–87, 564–565, 570–573; confusion with appeal 64–70, 75–77; grounds for 64, 70–87; failure to state reasons 83–86, 170; improper constitution of tribunal 69–71; manifest excess of powers 71–78, 170, 327; serious departure from a fundamental rule of procedure 79–83; right to be heard 79–82; inconsistency of decisions 87; precedential effect 87; see also international investment arbitration, precedent in arbitration; Schreuer on a “security system” to limit annulment applications 570–571; see also international investment arbitration, appeal system; jurisdiction 63, 212–213; rules and procedures 61–63; see also international investment arbitration; investor-State dispute resolution; relationship with MIGA 46–47 International Chamber of Commerce (ICC) 19 International Court of Justice 494–495; see also Permanent Court of international Justice international currency transfers see currency convertibility international investment see foreign direct investment international investment agreements; denial of benefits 126–135; “substantial business activities” 127–128, 131, 133– 134; third-party ownership 130, 134; see also bilateral investment treaties, denial of benefits; free trade agreements, denial of benefits; specific BITs, FTAs and IIAs which provide for denial of benefits (e g DR-CAFTA, denial of benefits); “fair and equitable” treatment 189, 264–308, 561–563; see also “fair and equitable” treatment; bilateral investment treaties, “fair and equitable” treatment; investment, standards of treatment, absolute standards, “fair and equitable” treatment; investors, standards of treatment, absolute standards, “fair and equitable” treatment; “full protection and security” 308–315; see also “full protection and security”; bilateral investment treaties, “fair and equitable” treatment; investment, standards of treatment, absolute standards, “full protection and security”; investors, standards of treatment, absolute standards, “full protection and security”; interpretation see interpretation of treaties; see also most-favoured-nation treatment, interpretation; Vienna Convention on the Law of Treaties; MFN clauses 263, 335–360, 380–386, 563–564; see also most-favoured-nation treatment; bilateral investment treaties, MFN clauses; investment, standards Index of treatment, relative standards, most-favoured nation treatment; investors, standards of treatment, relative standards, most-favourednation treatment; national treatment 189, 263, 360–376, 386–387; see also national treatment; bilateral investment treaties, national treatment; investment, standards of treatment, relative standards, national treatment; investors, standards of treatment, relative standards, national treatment international investment arbitration; abuse of the system 140; appeal system 87, 385, 571–572; see also International Centre for Settlement of Investment Disputes, investor–State dispute resolution, annulment of tribunal awards; arbitrators 30; effect of cultural/educational background on decisions 250, 385; balancing rights of investors with rights of States 386–387; DiMascio and Pauwelyn’s opinion 387; see also expropriation, exercise of “police powers”, “proportionality test”; contradictory decisions 141, 316–323, 332–333, 380–386, 561–571; disputes; the theory of crystallization” 200–202; timing of the “dispute” 198–202; enforcement of awards 508–509, 521, 543–555; Chinese practice 555–559; French practice 552–555; UK practice 550–552; US practice 546–550; errors in law 568–570; exhaustion of local remedies 251–257, 293–294; Paulsson’s opinion 257; relationship to MFN treatment 345–360; requirement of a “final decision” 251–253, 293–294; see also “fair and equitable” treatment, contents, denial of justice, exhaustion of local remedies; ICSID Convention, exhaustion of local remedies; judicial/ arbitral economy 68, 369–372; jurisdiction of tribunals 212–262; Chinese practice 258–260; “expansion” of jurisdiction by tribunals 223–230, 250; jurisdiction vs admissibility 248, 256–257; “jus standi” of investors see minority investors, “jus standi”; limitation to “disputes relating to compensation” 194–195, 224–227, 240–242; MFN clauses 345–360, 380–386; party consent to arbitration 212–262, 581 384–385; Chinese practice 258–260; determination of consent 213–230; established by initiation of arbitration 221–222; in mass claims 227; timing of consent 216–217, 230–234; unilateral offer of consent 215–216, 217–221; see also ICSID Convention, party consent to arbitration; Energy Charter Treaty, party consent to arbitration; precedent in arbitration 250; see also International Centre for Settlement of Investment Disputes, investor–State dispute resolution, annulment of tribunal awards, precedential effect; privity 212–213, 326–329; transparency 29; see also International Centre for Settlement of Investment Disputes, investor–State dispute resolution; investor–State dispute resolution; bilateral investment treaties, dispute resolution provisions international investment law; case law development 28–31; history 16–19; role of precedent 22–23; see also “stare decisis” International Law Association 524 International Law Commission’s 2006 Guiding Principles on Unilateral Acts of States 219 International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts 427, 481, 501, 508, 510–513; see also State acts/omissions, attribution; State officials, attribution of acts; State organs, attribution of acts; State-owned businesses, attribution of acts interpretation of treaties 563–570; Andreeva’s opinion 261–262; by use of “context” 20, 255; by use of other treaties 21–22; by use of preambles 23–28; by use of the principle of “in dubio mitius” 317; by use of the “textualrule-based” approach 565–566; on the basis of (joint) party interpretation 260; China’s position 260; see also most-favoured-nation treatment, interpretation; Vienna Convention on the Law of Treaties investment; commercial arbitration awards as investment 190–202; see also commercial arbitration; definition and elements 144–211; Chinese practice 202–209; “contribution, duration and risk” 148, 150, 156–160, 191–192; 582 International Investment Law: A Chinese Perspective investment (cont.) “contribution to local development” 26–27, 75, 150, 167–175; China’s position 206; “deductive” approach 151, 157–162; determined by the “totality of the transaction” involved 192–193; “double-barreled test” 147, 164–167, 173, 187; in accordance with Article 25 of the ICSID Convention 26–27; in accordance with the Preamble of the ICSID Convention 27; “in accordance with law” 20–21, 176–186; China’s position 206–208; in good faith (“bona fide”) 175, 176–186; “intuitive” approach 151–157; “jurisdictional” approach 26; “made in the territory” of the host State 145, 186–190, 191; effect of MFN clauses 334; “Salini” test 149–150, 152–154, 156, 164, 172, 191; China’s position 206; “typical characteristics approach” 26; see also “qualified investment”; “effective control” 1–2; investments made through intermediaries 184–186; promissory notes as investment 146–150; sales contracts as investment 159–160, 210–211; standards of treatment; absolute standards; “fair and equitable” treatment 264–308; see also “fair and equitable” treatment; “full protection and security”308–315; see also “full protection and security”; relative standards; most-favoured-nation treatment 263, 335–360, 380–386, 563–564; see also most-favoured-nation treatment; national treatment 189, 263, 360–376, 386–387; see also national treatment; see also indirect investment Investment Agreement for the Common Market for Eastern and Southern Africa (COMESA) Common Investment Area 176, 409, 447 investment guarantee programmes see Multilateral Investment Guarantee Agency; US Overseas Private Investment Corporation; see also breach of contract, insurance coverage; investor–State dispute resolution 61–62; balancing rights of investors with rights of States 386–387; DiMascio and Pauwelyn’s opinion 387; cause of action; “fundamental basis” of claim 243–246, 248–251; “treaty cause” vs “contract cause” 235–237, 238–239, 246–249; forum; the “fork in the road” 234–251; China’s position 258–259; Turner’s opinion 249; the “triple identity test” 238–240, 245–250; see also investor– State dispute resolution, parallel proceedings; parallel proceedings 244–245, 249–250; Sinclair’s opinion 245; see also investor–State dispute resolution, forum; rules and procedures 61; extension of MFN treatment to dispute resolution procedures 345–360; see also international investment arbitration; International Centre for Settlement of Investment Disputes, investor–State dispute resolution; bilateral investment treaties, dispute resolution provisions investors; definition and identification; as basis of jurisdiction of arbitral tribunals 88–98; Chinese practice 135–139; juridical persons 229–230; determination of nationality; place of incorporation or corporate seat 92–93, 101, 103–104, 109–111; piercing the corporate veil 99–112, 117, 141; domestic entities as foreign investors 88–89, 93–96, 97–98; Chinese practice 139; foreign control rule 93–96, 97–98, 101, 103–105, 107–108, 118; Chinese practice 136–137; Lalive’s opinion 95; transfers of ownership 140; “genuine link” as test of nationality 90–91; Schreuer’s opinion 90; Sinclair’s opinion 111; natural persons 228–230; change of nationality 91–92; domestic nationals as foreign investors 99–103, 105–111, 118 dual nationality 90, 92, 137; standards of treatment; absolute standards; “fair and equitable” treatment 264–308; see also “fair and equitable” treatment; “full protection and security” 308–315; see also “full protection and security”; relative standards; most-favoured-nation treatment 335–360; see also mostfavoured-nation treatment; national treatment 360–376; see also national treatment; State-owned companies as foreign investors 112; see also minority investors Iran–United States Claims Tribunal 91, 113, 404–405, 413–415, 420, 425, 454–455, 459, 510 Index Japan–Taiwan Investment Arrangement 383 Jordan–Italy BIT 354–355 jurisdiction see international investment arbitration, jurisdiction of tribunals; ICSID Convention, jurisdiction of ICSID; International Center for Settlement of Investment Disputes, investor–State dispute resolution, jurisdiction; investor–State dispute resolution, jurisdiction; “jus standi” see minority investors, “jus standi” -Lalive, Pierre; on the foreign control rule on determining the nationality of juridical-person investors 93, 95–96, 216–217 “lis pendens” 250; see also “res iudicata” “lucrum cessans” 449, 460, 464–465, 467, 471, 492, 505–507; see also compensation Luxemburg–Senegal BIT 228 Macao–Laos BIT 569 Macao investors in China 166 MAI see Draft Multilateral Agreement on Investment Mann, F.A.; on arbitrary and discriminatory acts of States 101; on “fair and equitable” treatment 275; on umbrella clauses 316 mass claims 124–125 measures tantamount to expropriation see expropriation, indirect expropriation mergers and acquisitions see cross-border mergers and acquisitions Mexico–Austria BT 356 MFN treatment see most-favoured-nation treatment MIGA see Multilateral Investment Guarantee Agency MIGA Convention 37–48; definition of investment 147; expropriation 408 minimum standard of treatment of aliens see “fair and equitable” treatment, relationship to the international law minimum standard of treatment of aliens minority investors; “jus standi” in investment arbitration 112–114, 119–120, 126 minority shareholders see minority investors money transfers see currency convertibility 583 most-favoured-nation treatment 335–360, 383; extension of MFN treatment to dispute resolution procedures 344–360, 376–386; cases opposing extension 353–360; cases supporting extension 345–353; treaty practice in reaction to extension 376–380; interpretation 339–344; on basis of the “ejusdem generis” principle 342, 347, 350, 353–354, 356, 359; see also interpretation of treaties; Vienna Convention on the Law of Treaties; origins and history 335–339; relationship to principle of exhaustion of local remedies 351, 382; see also bilateral investment treaties, MFN clauses; international investment agreements, MFN clauses; investment, standards of treatment, relative standards, most-favourednation treatment; investors, standards of treatment, relative standards, mostfavoured-nation treatment Multilateral Agreement on Investment see Draft Multilateral Agreement on Investment Multilateral Investment Guarantee Agency 32–33, 37, 388–389, 408; guiding principles 33, 37; insurance coverage 38–49; breach of contract 44; currency convertibility 43; expropriation 43; political violence 44; investment consultation 45–46; investor requirements 39–40; membership and voting rights 40–41; relationship with ICSID 46–47; statistics 48, 86 NAFTA see North American Free Trade Agreement national courts; authority of international arbitral tribunals to assess their actions 236, 238, 247, 250, 294, 509, 521–524, 528, 530, 543–555, 559 national laws; impact on FDI 6–15 national treatment 360–376, 383, 386; determination; difference in treatment 361–363; “effects test” 363; “in like circumstances” 361–362; competition as a necessary condition 363–366; liberal interpretation of the principle 370–371; three-step analysis 363; effect of trade tribunal decisions as precedent 373–375; see also bilateral investment treaties, national treatment; “fair and equitable” 584 International Investment Law: A Chinese Perspective national treatment (cont.) treatment, contents, non-discrimination investment, standards of treatment, relative standards, national treatment; investors, standards of treatment, relative standards, national treatment nationality of investors see investors, definition and identification nationalization see expropriation Netherlands–Argentina BIT 106 New Haven School of Jurisprudence 565–567 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 64, 196, 572 non-discrimination see expropriation, conditions for “legal” expropriation, non-discrimination; “fair and equitable” treatment, contents, non-discrimination; national treatment North American Free Trade Agreement (NAFTA) 19, 29,195, 257, 391, 377, 440, 452; compensation 453, 456, 466, 469–470, 475; denial of benefits 487, 490–491; expropriation 409, 415, 417–418, 420, 423, 427, 434, 436; “fair and equitable” treatment 264, 268–269, 271–272, 280, 282–283, 303; NAFTA Free Trade Commission’s Notes of Interpretation 268, 272– 273; mostfavoured nation treatment 379; national treatment 362, 366 OECD Draft Convention on the Protection of Foreign Property 264, 315, 391, 406, 438, 442 OPIC see US Overseas Private Investment Corporation “pacta sunt servanda” see bilateral investment treaties, umbrella clauses Paulsson, Jan; on exhaustion of local remedies 257 parallel proceedings see investor–State dispute resolution, parallel proceedings; see also investor–State dispute resolution, forum Permanent Court of Arbitration 19, 62, 65, 109, 160, 410 Permanent Court of International Justice 304, 392, 396, 463, 509; see also International Court of Justice Philippines Anti-Dummy Law 20, 177 piercing the corporate veil see investors, definition and identification, juridical persons, nationality, piercing the corporate veil police powers see expropriation, exercise of “police powers” political risk insurance 14, 48; see also breach of contract, insurance coverage; expropriation, insurance coverage; Multilateral Investment Guarantee Agency; US Overseas Investment Corporation precedent in arbitration see International Centre for Settlement of Investment Disputes, annulment of tribunal awards, precedential effect; international investment arbitration, precedent in arbitration privity see international investment arbitration, privity public policy; as defense against claims by foreign investors 180, 225, 242, 269; as “fundamental consideration” in adoption of international agreements 348, 355, 529, 545, 553 “qualified investment” 164, 176; see also investment, definition and elements “qualified investors” see investors, definition and identification; minority investors regulatory expropriation/regulatory taking see expropriation, indirect expropriation Reisman, W Michael and Sloane, Robert D.; on conditions for “legal” expropriation 392; on decision-making 565–566; on indirect expropriation 404, 416, 419, 427, 492, 506 “res judicata” 250; see also “lis pendens” Resolution on Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement 523 Resolution on the Immunity of Foreign States from Jurisdiction and Forced Execution 522 Russia–United Kingdom BIT 528 Rwanda–United States BIT 145 Schacter, Oscar; on the “Hull formula” 451, 453, 457, 472 Schreuer, Christoph; five criteria of investment 148–149, 152; on a “security Index system” to limit ICSID annulment applications 570; on enforcement of arbitral awards under the ICSID Convention 544; on nationality of investors under the ICSID Convention 90; on “nationality planning” 139; on the “genuine link” test of nationality 90, 100, 102–103 Sinclair, Anthony C.; on parallel proceedings 245; on the “genuine link” test of nationality 111 Southern African Development Community Treaty 395 sovereign immunity 508–509, 521–546, 550, 553–559; the doctrine of absolute sovereign immunity 530–534; the doctrine of restricted sovereign immunity 534–536 Spain–Mexico BIT 270 “stare decisis” 22–23; see also international investment law, role of precedent State acts/omissions; attribution 329, 510, 513, 516–517, 563; see also State officials, attribution of acts; State organs, attribution of acts; State-owned businesses, attribution of acts; see also sovereign immunity State officials; attribution of acts 517; see also State acts/omissions, attribution; State organs, attribution of acts; Stateowned businesses, attribution of acts State organs; attribution of acts 512, 518, 524, 537; see also State acts/omissions, attribution; State officials, attribution of acts; State-owned businesses, attribution of acts; Crawford’s opinion 512 State-owned businesses; attribution of acts 513–514, 517, 524, 527, 534–535; see also State acts/omissions, attribution; State officials, attribution of acts; State organs, attribution of acts State sovereignty see sovereign immunity State succession 569–570 States’ right to regulate see expropriation, exercise of “police powers” Stern, Brigitte; on indirect expropriation 350, 405, 480–481 Stockholm Arbitration Court 19 “substantial business activities” 127–128, 130–131, 133–134; see also holding companies; shell companies Switzerland–Pakistan BIT 187, 318, 520 Switzerland–Philippines BIT 320–321 585 Taiwanese investors in China 138–139 tax regimes; impact on FDI 18–19 Trilateral Investment Agreement (China, Japan, South Korea) 50, 331, 361, 384 TRIMs Agreement see WTO Agreement on Trade-Related Investment Measures Turkey–Turkmenistan BIT 564, 567 Turner, Peter; on the “fork in the road” 235, 249 UK State Immunity Act 541, 542 Ukraine-United States BIT; denial of benefits 324 umbrella clauses see bilateral investment treaties, umbrella clauses UN Convention on Jurisdictional Immunities of States and Their Property 559 UNCITRAL see United Nations Commission on International Trade Law UNCITRAL Arbitration Rules 61, 268, 423, 468 UNCTAD Report on National Treatment 288, 361 UNCTC Draft Code of Conduct 440 U.N.G.A Resolution 626 (VII) 437 U.N.G.A Resolution 1803 (XVII) 390–391, 438, 450, 458, 460–461 U.N.G.A Resolution 2158 (XXI) 438 U.N.G.A Resolution 3171 (XXVIII) 439 U.N.G.A Resolution 3201 (S-VI) 391, 439 U.N.G.A Resolution 3281 439 United Kingdom–Egypt BIT 155, 166 Unified Agreement for the Investment of Arab Capital in the Arab States 407, 438–439, 443 United Nations Commission on International Trade Law (UNCITRAL) 19, 59, 235, 345,561, 568 United States; bilateral investment treaties; history 49–50 United States–Argentina BIT 76, 273 United States–Ukraine BIT 488 Universal Declaration of Human Rights 437 unlawful expropriation see expropriation, unlawful expropriation US Foreign Assistance Act 33–34 US Foreign Corrupt Practices Act 14 US Foreign Sovereign Immunities Act 537–542, 546–550, 554, 557 586 International Investment Law: A Chinese Perspective US Model BIT 49–50, 89, 136, 138, 145, 204, 332, 377, 409, 441, 448 US Overseas Investment Corporation (OPIC) 33–37; guiding principles 34–37; history 33–34; insurance coverage; expropriation 35–36; political violence 36–37; investor/investment requirements 34–35 VCLT see Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties (VCLT); principles of treaty interpretation 20, 23, 25, 29, 76, 87, 102–103, 109, 111, 131, 175, 228, 249, 255, 282, 318, 340–342, 353, 360, 382, 564–565; requirement that treaties be performed in good faith 177–178 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States see ICSID Convention Wälde, Thomas; on DCF valuation, damnum emergens and lucrum cessans Weil, Prosper; on umbrella clauses 102, 107, 315 Weiler, Todd; on non-discrimination under the NAFTA 285–286, 328, 510 WIPO see World Intellectual Property Organization World Bank World Bank Guidelines on the Treatment of Foreign Direct Investment 391 World Intellectual Property Organization (WIPO) 18 World Trade Organization (WTO) 4, 8; Appellate Body 22, 28, 87, 181, 209, 344, 363, 385, 571, 572 WTO see World Trade Organization WTO Agreement on Government Procurement 13 WTO Agreement on Trade-Related Investment Measures (TRIMs Agreement) 16, 18, 380 ... General de Aguas de Barcelona S .A. , and InterAguas Servicios Integrales del Agua S .A v Argentina, ICSID Case No ARB/03/17, Award, 30 July 2010, 423, 424 xx International Investment Law: A Chinese. .. United Nations Commission on International Trade Law A Cross-application of treaty and national law A unique feature of current investment law is that almost all matters are subject to both treaties... to a ? ?Chinese perspective? ?? on international investment law is as anachronistic as viewing the author of this extraordinary book as a ? ?Chinese? ?? scholar, rather than as the world class international