A Preliminary Study On The National Treatment Provisions Of The BITs In China

At the most recent US-China Strategic and Economic Dialogue (S&ED) in July2013(the ninth round of "technical" discussions since talks resumed in2008), the United States and China achieved a significant breakthrough on the negotiation of a high-standard US-China bilateral investment treaty (BIT). The two sides agreed to begin substantive negotiations on a bilateral investment treaty on the basis of pre-establishment national treatment (include all stages of investment and all sectors) and negative list, which are the first time China has agreed to do so with another country. Therefore, this dissertation will mainly study the national treatment provisions of the BITs in China. There are three parts in this dissertation, namely an introduction, a main body and appendices. The main body further divided into four parts.The first part of this dissertation defines the concept of national treatment. It provides a brief introduction to the meaning of national treatment in international investment law. It further examines the meaning of national treatment in the context of BITs. Finally, this part summarizes the exceptions of national treatment in BIT.Part two addresses recent changes in the practice of the national treatment provisions of the BITs in China and further discusses what might cause the changes. Firstly, this topic traces the expressions of the national treatment provisions in BITs of China, which can be summarized into five different expressions of national treatment. Furthermore, the author examines the latest expression of national treatment, which is pre-establishment national treatment in US-China BIT negotiation. After that, the author analysis why China agreed pre-establishment national treatment in the recent BIT negotiation.The third part focuses on issues that existed in BITs of China. There exist four issues that need to be resolved in the future, namely the lack of uniformity in term of defining investment in concluded BITs of China; the lack of defining SOEs in concluded BITs of China; the lack of exceptional measures for national treatment in concluded BITs of China; the lack of coordination of national treatment in BITs of China and domestic legislation of China.The forth part provides some recommendations on the basis of the discussions before to improve national treatment in the future BIT Model.