| Despite the waves of privatization and reform,state-owned enterprises(SOEs)still operate widely in the world and participates in the international investment market as both host states’ entities and foreign investors.When it comes to the former,it means that the host states’ SOEs participate in international investment by attracting foreign investors,managing foreign investments,or competing with foreign investors.As for the latter,it means that the SOEs of home state make investment abroad through new greenfield investment,merger and acquisition,etc.Recently,the issues of identity,fair competition,and human rights caused by SOEs’ participation in international investment have attracted lots of spotlights,which even have been subject to special regulation.The purpose of this dissertation is to study and analyze the existing practice of international investment law regulation of SOEs on the above three issues,and to explore the regulation possibilities in the future.Considering the Chinese SOEs’ vital role in the international investment markets,this dissertation will put forward some solutions for China.In addition to the introduction and conclusion,this dissertation is divided into five chapters,mainly about the two roles of SOEs in international investment and three related issues.The introduction presents the background and significance of this topic,reviews the literature on this topic at home and abroad,expounds the research contents and methods,and explains the innovation and difficulties of the research.Chapter 1 describes the real background and theoretical basis for the international investment law regulation of SOEs.Firstly,it systematically sorts out the historical development and existence basis of SOEs to demonstrate the necessity of their emergence and existence.After examining the evolution of the definition of SOEs in international legal norms,such as international rules for economic and trade,OECD Guidelines on Corporate Governance of State-Owned Enterprises,etc.,it decides to take "ownership" as the factor to define SOEs to clarify the research scope.Secondly,it elucidates how the SOEs of host States and SOE investors taking part in the international investment and reveals the identity issue,fair competition issue,and human rights issue caused by the "state ownership" and the SOEs’ operating field,to explain the reasons for regulating SOEs.Finally,it demonstrates the necessity and feasibility of applying international investment law to regulate SOEs,by considering the defects of existing regulations,the demands of regulations and the development of IIAs and international investment dispute settlement mechanisms.Chapter 2 examines the arbitration practice of international investment law regulation of SOEs through identification,revealing the relevant situations and disputes of SOEs that are identified and may be identified as sovereign states.First of all,it points out that "State ownership" is not the decisive factor in determining the status of SOEs.The structural characteristics of "public-private distinction" in the international investment law enable the international investment arbitration tribunal to apply the attribution rules in the Draft Articles on State Responsibility(ILC Draft),the SOE clauses in IIAs and other relevant legal bases to determine the status of SOEs.The identity issue is also the starting point for the international investment law regulation of SOEs.Secondly,as to the identity issue of the Host States’ SOEs,it can either take place at the jurisdictional phase or the merit phase.Among the three identification approaches at the jurisdictional phase:the employment of prima facie approach is largely based on "State ownership",i.e.,presuming SOEs’ actions can be attributed to the State.At the merit phase,even if the threshold for the application of the attribution rules in the ILC draft is very high,there are still many cases attributing the conduct of SOEs to the government.Not only that,but there are also claims and practices in the existing rulings that broadly interpret the attribution rules of ILC Draft and lower the attribution threshold.Besides,when the arbitration tribunal applied the SOE clauses of IIAs to identify SOEs,there were disputes over the qualification of the clause and its application relationship with the attribution rule in ILC Draft.Finally,as far as the qualification of SOE investors is concerned,even if SOEs are covered investors in IIAs when resorting to ICSID arbitration,the Broches test still needs to be applied.The nature of the Broches test also leads to a dispute over whether the tribunal should consider the "purpose" of SOEs’ activities when determining whether the entity has discharged an essentially governmental function.Chapter 3 discusses the possibility of international investment law regulation of the SOEs’ fair competition issue.Currently,the vast majority of IIAs have not incorporated specific provisions regulating fair competition issues related to SOEs.Competitive equality clauses are found in early U.S.IIAs.Starting with these IIAs,it analyzes the historical trajectory from emergence to transformation of these clauses,and then discusses the existing practices and future possibilities of the international investment law to regulate the fair competition issues induced by SOEs of host state and SOE investors in combination with the recent impact of the systematic development of the fair competition rules of SOEs in international investment law.It shows that:Firstly,although it is challenging for the existing non-discriminatory treatment provisions in IIAs to regulate the competitive advantages enjoyed by the host country’s SOEs over foreign investors,the evolving of fair competition provisions for SOEs in free trade agreements may affect the interpretation of investment arbitration tribunals as "external rules".Secondly,the non-arbitrability of the non-discrimination clause of SOEs in free trade agreement limits the investment arbitration tribunal’s ability to regulate the discriminatory preferential behaviors of SOEs of the host state,but it cannot be ruled out that this clause will be re-incorporated into the IIAs and supplemented by the implementation of the inter-states arbitration mechanism or friendly dispute settlement mechanism.Thirdly,investors of SOEs subjecting to discriminatory admission review in the host state have difficulties in seeking relief from the "promotion and encourage"clause and the "pre-establishment national treatment" clause in IIAs.In this regard,the contracting parties may consider enhancing the transparency of the host country’s foreign investment review in future IIAs,to reduce the risk of discriminatory review of the host state.Fourthly,out of concern that SOEs may distort the investment environment of the host state,future contracting parties may regulate the unfair competitive advantage of SOEs investors by establishing the home state’s investment subsidy system and applying transparency clauses.Chapter 4 fleshes out the possibility of international investment law to regulation of SOEs’ adverse human rights impacts.Given the fact that there is currently no specific research on the regulation of human rights of SOEs in the field of international investment law,this chapter starts with the reasons for the interaction between international investment law and human rights issues.It reveals the characteristics of international investment law in regulating the illegal human rights behaviors of SOEs by combining the unique regulation of SOEs by international human rights norms such as the United Nations Guiding Principles on Business and Human Rights.In terms of the host states’SOEs,the host states have a higher "due diligence obligation on human rights",and the innovation of compensation mechanism in the practices of investment arbitration can make the international investment law play a more significant role in regulating the negative impact of human rights of the SOEs in the host state.As for the SOE investors,this section firstly analyzes the basic approaches of international investment law to regulate investors’ human rights responsibilities.Then it combines the higher requirements of international human rights norms and domestic policies and regulations for SOEs to argue that SOE investors can be regulated by international investment law for failing to fulfill their human rights due diligence.With the vital presence of SOE investors in the extractive industry,it concludes that SOE investors can be regulated by international investment law for failing to fulfill their social community human rights responsibilities.In international investment scenarios,China plays double roles,not only as of the capital-importing country but the capital-exporting country in international investment.Considering the international investment law possible Regulation of Chinese SOEs’identity issues,fair competition issues,and human rights issues,Chapter 5 puts forward some solutions as the response.Combining with China’s international investment treaty practices,these solutions include,inter alia,incorporating specific attribution rules for SOEs can be included in China’s investment treaties,taking an active role in negotiations on fair competition clauses for SOEs.The conclusion part acknowledges that no matter in the investment contracting practices or dispute settlement practices,there are few special Regulation of SOEs,and the relevant regulation practices mainly focus on the status of SOEs.However,this dissertation holds that the identity,fair competition,and human rights issues of SOEs will be subject to more strict regulations or special regulation of the international investment law,based on two following reasons.One is that the "state ownership" of SOEs constitutes an important factual consideration for determining identity.Besides,norms such as the chapter on SOEs in international rules for economic and trade,the OECD Guidelines on Corporate Governance of State-owned Enterprises,and the UN Guiding Principles on Human Rights for Business and Human Rights all provide special regulations for SOEs.These facts and normative elements may become essential considerations for the regulation of SOEs by international investment law.Therefore,it is necessary for Chinese SOEs that participate in international investment as "dual roles" to understand and respond to various possible situations regulated by international investment law. |
