Study On The Definition Of Investment Under BIT

More than 90% of international investment treaties in the current practice are bilateral investment treaties. There are more than 100 bilateral investment treaties which China has signed that makes China be in the second place only behind Germany. Definition of the Investment is the key provisions of bilateral investment treaties. It decides the scope of the application of the Treaty, but also affects the jurisdiction of ICSID. However, both in international legislation or international arbitration practice, the definition of investment are not unified understanding. Since recent, whether it is for a specific interpretation of the treaty text, or ICSID’s arbitration practice, we have made expansion understanding of the definition of investment. In 2015, China became the first ranking country in accept foreign direct investment, and with China’s "going out" strategy becomes in-depth, Chinese investors’ investment in overseas also increases year by year. Our bilateral investment treaties adopt widespread, asset-based and open-ended investment defined way so that our country is facing huge international arbitration venture. In order to improve our definition of investment, paper focuses on the study of definition of investment under bilateral investment treaty, specifically discusses the theoretical definition of investment, the definition of investment under treaty text, and the arbitration practice of the definition of investment as well as our definition of investment in the BITs. Ultimately combine the full text of the study, given the definition of investment in our country offering the stand and countermeasures which China should held. Removing the abstract and conclusion, this paper contains five chapters.The first chapter is about the basic theory of definition of investment. The first section mainly discussed the definition of investment from the point of view of economics and law. It clarifies the adverse effect from the heterogeneity of the theory and lacking of operability in the definition of investment. The Second section describes the three ways to define investment, and points out that the hybrid approach is in line with trends.The second chapter is the text of the treaty’s definition of investment research. The first section describes the situation of signed BITs and further clarifies the importance of researching definition of investment under the BIT. The Second Section elaborates a concretely generalized manifestation of the definition of investment in the text of the treaty. Then it shows 2012 US BIT to introduce the generalization of definition of investment under the BIT and the effect of generalization. The highlights and innovations in this chapter are mentioning the effect the 2012 US BIT made on the definition of investment under Trans-Pacific Partnership Agreement, Transatlantic Trade and Investment Partnership Agreement and the latest revision of India’s national BIT template.The third chapter is about the study of the interpretation of the definition of investment under arbitration practice. The first section describes the ICSID can not be ignored in the international investment dispute settlement because of their status and influence. The research for their jurisdiction of the tribunal is prepared for the second. In the second section, case of empirical research method is used. The author selected Four ICSID cases which are representative under subjective interpretation and objective interpretation to proof the expansion of the interpretation of the definition of investment. The author believes that, ICSID has generalized trends and significant uncertainty in the interpretation of the definition of investment. As for the motivation the author considered that the ICSID wants to expand its jurisdiction. Highlights of this chapter is to conduct in-depth analysis of the case, to avoid empty talk.The fourth chapter clarifies the reason that definition of investment expands from three aspects: capital-exporting countries, legal and cultural development, economic activities for their own.The fourth chapter describes the expansion process of the protected investment. The second section analyzed the expansion reasons for the definition of investment from three aspects which are capital-exporting countries’ promoting, legal and culture’s development and economic activitiesThe fifth chapter is the core of this article. The first section analyzes China’s dual role of capital-exporting country and capital-importing country in the context of international investment. Highlights in the second section is summarizing and analyzing all the investment definitions in BITs China signed. Then it discusses China’s practice of arbitration as a respondent. Combining the previous analysis, The author believes that the definition of investment under the present BITs is too broad, and words is not precise. Also it lacks of restrictions such as investment characteristics, and so on. Finally, according to the foregoing analysis of the current trend of international investment and international arbitration developments in the definition of investment, the latest trends in ICSID arbitration practices, for our own international investment relations as capital-exporting and capital-importing countries, the author proposes some advice. The author’s central point is that in updating BIT or in the Negotiations with US, we should take position of "adhere to limit indirect investment" and "take action consistent with laws of the host". Also take other measures like "use asset-based hybrid defining manner", "distinguish definition of investment with different countries ".