China and International Investment Law

Editor Wenhua Shan, Ph.D., Trinity College, Cambridge, is the Ministry of Education Yangtze River Chair Professor of International Economic Law and the founding Dean of Xi'an Jiaotong University School of Law, Senior Fellow of Lauterpacht Centre for International Law, University of Cambridge and the founding Editor-in-Chief of The Chinese Journal of Comparative Law. He has published monographs and articles in such journals as the AJCL and EJIL.Assistant Editor Jinyuan Su, Ph.D., Xi'an Jiaotong University, is Associate Professor and Assistant Dean at Xi'an Jiaotong University School of Law. He has published one book and many articles on international and comparative law.

"This book provides readers with an examination of Chinese international investment law–both inside and outside, both retrospective and prospective, both descriptive and constructive. Chinese investment law has been widely recognized as having increasing implications on international investment law as a whole, though it is too early to draw a definite conclusion as to the extent and nature of such implications. In some sense, it is this uncertainty that endows this book with a fantastic reading value." - ICSID Review"The book makes an important contribution to the recent literature on China’s role in the international investment law regime, which includes International Investment Law: A Chinese Perspective by Guiguo Wang (2014) and Chinese Investment Treaties: Policies and Practice by Wenhua Shan and Norah Gallagher (2009). It will be of use to students, academics, and practitioners alike in explaining China’s evolving participation in the international investment legal regime and likely future developments.” - Kate Apostolova and Lexi Menish, Freshfields Bruckhaus Deringer

• Part I: Overarching Issues in International Investment LawChapter 1. ICSID and International Investment Treaty Arbitration: Progress and ProspectsMeg Kinnear1.Treaty Design2.Dispute Avoidance3.Application of Substantive Obligations4.Procedure5.ConclusionChapter 2. The Past, Present and Future of the International Law on Foreign InvestmentM Sornarajah1.The Past2.The Present3.The FutureChapter 3. Judicial Administration of Justice in Multilevel Commercial, Trade and Investment Adjudication?Ernst-Ulrich Petersmann1. Introduction and Methodological Premises2. ‘Constitutional Justice’ Protecting Human Rights: The European ‘Kadi’- and ‘Solange’ Jurisprudence3. From ‘Westphalian Justice’ in the ICJ and the WTO to Multilevel Cosmopolitan Adjudication in HRL and IEL4. Lack of ‘Cosmopolitan Justice’ in WTO Jurisprudence? Need for Taking the Customary Rules of Treaty Interpretation More Seriously5. Does HRL Require Protecting WTO Law and Dispute Settlement as Cosmopolitan Legal Systems?6. Multilevel Judicial Protection of ‘Cosmopolitan Justice’ in Commercial and Investment Adjudication7. Conclusions: HRL Justifies ‘Constitutional’ and ‘Cosmopolitan Approaches’ to IEL and AdjudicationChapter 4. The Development by States of Model Bilateral Investment Treaties Chester Brown1. Introduction2. Introduction to BITs3. Historical Predecessors to the BIT4. Emergence of the (Model) Bilateral Investment Treaty5. Concluding RemarksChapter 5. Protection of the Investor’s Legitimate Expectations: Intersection of a treaty obligation and a general principle of lawHAMAMOTO Shotaro1. Introduction2. “Tour d’horizon” of Arbitral Jurisprudence2.1 Origin3. Legal Basis: A General Principle of Law4. ConclusionPart II: Chinese Investment Treaties: Key AspectsChapter 6. Factors to be Considered for China’s Future Investment TreatiesYongjie Li1. Introduction2. China’s BIT Practice3. Global Context4. China’s Domestic Context5. Improvement of Investor-State Dispute Settlement6. ConclusionChapter 7. China’s BIT’s and Arbitration Practice: Progress and ProblemsNorah Gallagher1. Introduction2. China’s changing position on Investment Treaties3. China's Free Trade Agreement Policy4. Interesting Developments since China signed the ICSID Convention5. China’s Investment Treaty Arbitration cases6. ConclusionChapter 8. China and International Investment Law: An Evolving Relationship Martin Endicott1. The Evolving Relationship2. Promotion of Inward FDI3. Driving Factors Behind China’s Investment Treaty Program4. Concluding CommentsChapter 9. The Chinese Investment Treaty Programme, Jurisdictional Challenges and Investment Planning: The Example of Chinese Outbound Investments in the Natural Resources SectorNils Eliasson1. Introduction2. Chinese outbound natural resources investments3. Investment treaty protection of Chinese natural resources investments4. To what extent is investment protection strategies employed by Chinese companies investing in the natural resources sector5. DiscussionPart III: Chinese Investment Treaties: Key NegotiationsChapter 10. The Chinese Investment Regime and the US-China BIT NegotiationsEric Pekar1. Introduction2. The Evolution of China’s Investment Treaty Regime3. BITs and the Chinese Legal System4. US Domestic Politics, National Security, and BITs5. Negotiating the U.S.-China BIT6. Conclusion: Why Negotiate a BIT?Chapter 11. The Evolution of EU Investment Law and Future of EU-China Investment RelationsMarc Bungenberg and Catharine Titi1. The status quo of investment policymaking in the EU before and after the entry-into-force of the Treaty of Lisbon2. History of Chinese international investment law policy and practice3. A prospective EU-China IIA4. China-EU developments in a broader context5. ConclusionChapter 12. Instituting Investment Claims under the Trans-Pacific Partnership AgreementLeon E Trakman1. Sources of an Investment Chapter2. Key Definitions3. Standards of Treatment4. Modelling Dispute Management under the TPPA5. Australia's Objection to Investor-State Arbitraion6. ConclusionChapter 13. Joint Interpretations under a Divided TPP Investment ChapterMark Feldman1. Introduction2. Origin and Status of the TPP Negotiations3. A TPP Investment Chapter Should not Require Senior Political Level participation for Joint Interpretations4. Joint Interpretations and the Dispute Settlement Section of a TPP Investment ChapterConclusion