Research On Issues Of The Right To Regulate In International Investment Agreements

Nowadays,the growing loss of national sovereignty in the face of broader and deeper investment obligations being generated at the international level and the open-textured wording of international investment agreements substantially expand the tribunal's discretion,leading to unpredictability of application of the right of states to regulate.Meanwhile,the tribunal's blunt pro-investor attitude in the growing number of investment arbitrations provokes more challenges against regulatory measures of the states.Considering the influences and threats,states begin to focus on the issue of how to preserve their regulatory space.China is now accelerating the negotiations of the China-US BIT and China-EU BIT.Further,it will enter into negotiation of the China-Japan-Korea FTA.Although it has not been involved in arbitrations because of its regulatory measures,China should take the issue seriously.On the one hand,India,the US and Canada have frequently been exposed to this kind of claims,which will possibly happen in China.On the other hand,China's outward investments have the experiences of being hurt by regulatory measures of foreign countries.Hence,as a capital-importing country or a capital-exporting country,China should attach importance to the issue.Considering this,this thesis will explore the tracks of the US,EU and India's treaty-making experience to safeguard the right to regulate from being adversely affected and issues therein.In this way,the thesis aims to provide experience for China's future rule-making of international investment agreements to safeguard its right to regulate.This thesis includes 4 parts apart from the introduction and conclusion.The first part elaborates the concept of the right to regulate.Also,it analyzes adverse effects of substantive rules and arbitration practice on the right to regulate.This part makes clear that the nature of the issue existing in the right to regulate is tension between the states' international obligations to promote investment liberalization and their right to regulate and supervise.The second part begins from conclusions of the first part,analyzing the tracks of setting exception clauses,drafting more precise substantive obligations,expanding interpretative authority of the host states to reduce challenges against the right to regulate.Based on the second part,the third part investment starts from treaty-making practice of the US,EU and India,analyzing relevant provisions of the TPP,CETA,the TTIP draft and their respective model BITs.It explores how these economies safeguard the right to regulate through relevant provisions as well as limitations and issues therein.The fourth part concludes China's investment treaty-making practice and raises issues therein.Further,it draws experience from the US,EU and India's practice and elaborates China's considerations in future investment rule-making.The thesis concludes that China's efforts in safeguarding the right to regulate are similar to those of the US.However,China can draw insights from the EU and India's rule-making practice.