Research On Investor–State Arbitration System In Chinese Free Trade Agreements

Since the implementation of reform and opening-up policy, Chinese economy has developed rapidly, making China one of the special countries (regions) at the investment field, being investors' home country (region) and investment destination country (region) at the same time. Under this conditions, the international investment dispute, especially the direct investment dispute between the foreign investors and the host country (region), China, could not be avoided. Many economies have been trying to conclude international treaties to deal with these disputes problems, by providing relative articles which is knowing as the investor- state dispute settlement mechanism. The most important treaties among them, are bilateral investment agreements and the free trade agreements. China also follows this approach to solve those problems. Compared with the first Chinese BIT which is concluded by China in 1980 s, Chinese FTAs do not have a long history. If the 2003 "Closer Economic Partnership Arrangement"(CEPA) between mainland as one part, and Hong Kong SAR or Macao SAR as another, could be tagged as the first FTA of China, there is only over 10 years' history for Chinese FTAs. However, over the past one decade, Chinese FTAs have developed rapidly. Such developments in the Chinese FTAs are not only a consequence of the Chinese economic development, but also the consideration of geopolitical aspects, and so on. With the gradual development of Chinese FTAs, the investor- state arbitration rules contained by the investment rules of Chinese FTAs also made a great progress.On the basis that China is becoming a investors' home country (region), the gradual change about the investor- state arbitration rules in Chinese FTAs means that, the investor- state arbitration rules contained by newer Chinese FTAs are likely to take a more balanced approach compared with their older counterparts. Among these Chinese FTAs, China- Korea FTA and China- Australia FTA are concluded recently. In consequence, they contain the newest investor- state arbitration rules among these Chinese FTAs. Unfortunately, these two Chinese FTAs have contained some obvious problems in their investor- state arbitration system. If we compare those problematic rules with the rules in developed countries (regions) FTAs in the aspects of experiences and the lessons about how developed countries (regions) solved similar problems, probing methods to solve those problems of investor-state arbitration in Chinese FTAs, would be possible.The dissertation mainly includes four parts. The first part gives a brief introduction about the background knowledge of the investor-state arbitration system in Chinese FTAs, including the origin, development and characteristics, which lays down the foundation for the problem-probing task in the second part. While taking the newest Chinese FTAs, the China-Korea FTA and the China-Australia FTA, as a starting point, the second part analyzes three obvious problems about the investor-state arbitration system in the Chinese FTAs: problems about transparency rules, arbitration award and rule-explain consistency, as well as the rules to prevent indiscriminate lawsuit. The main contents of this part include the analysis of the articles, analysis of problems, etc. The third part, on the basis of the analysis of similar problems and solutions in American FTAs, such as NAFTA and the US-Chile FTA, probes solutions of problems in China's FTA, and enlightenments to future Chinese FTAs. The fourth part is about whether to follow the approach in the US-Australia FTA, which is abolishing the investor-state arbitration system, in future Chinese FTAs.Overall, through the dissertation, some guidances are provided for purpose of promoting the appropriate development of the investor-state arbitration system in Chinese FTAs that suits Chinese realities.