A Research On The Jurisdiction Of International Investment Tribunals Involving Chinese Bilateral Investment Treaty In The Area Of The Belt And Road

Jurisdiction is a prerequisite for international investment tribunals to decide upon investor-state disputes.Leaving alone interference factors,the international investment tribunals must themselves give rulings as to the existence of their jurisdiction.It is now commonly agreed that the jurisdiction of an investment tribunal can be divided into three parts.There are jurisdiction ratione materiae,ratione personae and ratione temporis,neither of which can be dispensed with.To decide upon jurisdiction,international investment agreements,especially bilateral investment treaty play a vital role.Their jurisdiction ratione materiae is limited to disputes involving investment.The definitions of investment that China has envisaged in the area of the Belt and the Road have been proved to be too broad to work.ICSID have found this flaw and its' double keyhole test is aimed to decrease the meaning of investment.However,the application of double keyhole test is not straight.Besides,87% BITs that China signed with nations within the area of the Belt and the Road provide that the disputes that can be submitted to international arbitration are those involving the amount of compensation for expropriation,the meaning of which need be further clarified as to whether they include disputes concerning the legality of expropriation.Their jurisdiction ratione personae is limited to disputes between investors and host states.Nowadays the majority tribunals decline to use the genuine and effective nationality to solve the issue of dual nationals for individual investors.As for the nationality of economic investor,China usually consider the seat of incorporation as the sole and important factor,which can easily give rise to problems of treaty shopping.However,tribunals tend to show a high degree of tolerance towards treaty shopping.Lastly,there are special investors who are involved in Hong Kong and Macao.In the case of Sanum v.Laos,the issue whether BITs signed by China apply to Macao has been decided three times by PCA arbitration,Singapore High Court and Singapore Appellate Court with the final decision that the China/Laos BIT applies to Macao.There are mainly two kinds of provisions providing for jurisdiction ratione temporis in the BITs signed by China with states in the area of the Belt and the Road.One excludes anticipate disputes and one provides for extinctive prescription.There are also many BITs that contain no ratione temporis jurisdictional provisions.At this time,tribunals need to decide their jurisdiction ratione temporis in two aspects.From the perspective of disputes,tribunals enjoy jurisdiction over disputes which arise both before and after the relevant BIT;From the perspective of acts,the accused act of host state must commence within the time during which the obligation that is sued upon is valid.After a full study of the texts of investments signed by China in the area of the Belt and Road and with a comprehensive research of international investments jurisprudence,especially cases involving China of which documents have been published,a conclusion is made by this author that no matter what the relevant investment agreements say about issues of tribunal's jurisdiction,there exist inconsistent awards concerning jurisdiction issues.Having the above conclusion in mind,the author proposes for China to do the following two things when there is a chance for China to sign new investment agreements or to amend existing investment agreements with states in the area of the Belt and Road:(1)to enhance the power of contracting states when interpreting investment agreements;(2)to make effort to establish a appellate mechanism for international investment awards which aim to correct inconsistent international investment awards expost.