摘要
Abstract
The negotiation on bilateral investment treaty(BIT)between China and the US was critical for both parties.The deep influence of this negotiation over the innovation of the regime of international investment law,the clarification of the standing points of both two countries,and the up-gradation of China's policy over its investment treaty shall not be underestimated.Under such a background,methodologies of rechtspolitik,hermeneutics and comparative law were employed to study on the dynamics,policy choice for China to upgrade its BIT and a version of such upgraded BIT was discussed and named as the fourth generation Chinese BIT.Certain core provisions of the foresaid fourth generation Chinese BIT was illustrated in detail in the current paper.
This study found that:(1)economical,domestic political,and international political considerations are the three main driving powers for China to upgrade its BIT policy.Economically,the accumulation of outbound investment requires China to modify its BIT policy to adapt to its role shift from a net capital importer to a capital importer-exporter.Domestic politically,the target-setting to realize a deepening and comprehensive reform requires China to emphasize the weight of upgrading its BIT as a tool for"promoting reforms by the way of open-door".For international political consideration,upgrading its BIT can improve China's power in the discourse of rules on international investment governance.(2)China should adopt a balanced and liberal approach in upgrading its BIT.China should improve its regulatory circumstance to facilitate the access of foreign investment while guaranteeing the balance between the rights of the foreign investor and the host states.In the phase of admission of investment,it could adopt the policy of national treatment+negative lists for admission toward foreign investment.(3)Based on the doctrine of balanced and liberal standard,a set of rules of Chinese BIT were proposed.Among which,for fair and equitable treatment(FET)clause,FET clause should be connected to the international minimum standard of customary international law.For expropriation and compensation clause,the fair market value should be set as the standard to calculate the value of compensation while the elements of indirect expropriation should be clarified.For clauses on social responsibilities,the importance of these clauses should be addressed but their stipulation should be carefully drafted to soften the binding force,enforceability and arbitrability of them.For dispute resolution clauses,China should design the clauses on the mechanism of investor-state dispute settlement(ISDS)in detail in its BIT to reduce the flexibility of these clauses.At the same time,for certain disputes,it is better to refrain them from ISDS but to state-state dispute settlement(SSDS)mechanism in less politicalization of such investment disputes.The study on the dynamics,policy choice of upgrading China BIT and detailed analysis over the substantial and procedural clauses of it,reflected the attitude of China toward the innovation over international investment treaty,played a role in negotiating a Sino-US BIT,and provides a reference for improving China's BIT policy and negotiating another BITs with its counterparts.关键词
投资条约/投资仲裁/中美谈判/规则建构/投资自由化/政策选择Key words
investment treaty/investment arbitration/the Sino-US BIT negotiation/rule-making/liberalization of investment/policy choice分类
社会科学
