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The Transition Clauses In China's Bilateral Investment Treaties

Posted on:2017-07-14Degree:MasterType:Thesis
Country:ChinaCandidate:Z X GaoFull Text:PDF
GTID:2416330596990952Subject:International Law
Abstract/Summary:PDF Full Text Request
There is a shift happening in China's Bilateral Investment Treaties(BITs).The transition of China's BITs from the initial first-generation to the newest fourth-generation(Foreign Investment Promotion and Protection Agreement,FIPA)is a remarkable landmark for China's more liberal and open economy.However,the inconsistency between the new and old China's BITs,which causes confusions of BIT's application,is becoming an obstacle for Chinese investors to seek relief through international arbitration.China is among the countries that have signed the largest number of BITs.As China re-negotiates and re-signs more newgeneration BITs with countries with which China have already concluded the first-generation BITs,investment claims relating to the old and new BIT's application would become more frequent.Therefore,it will be of great significant in properly interpreting and applying the transition clauses in China's BITs.This article,through analyzing the ICSID case Ping An v.Belgium,will address issues of(1)a risk that disputes arising prior to the new BIT might fall into some “black hole” or “arbitration gap” between the new and old BIT;(2)the definition of the term “dispute” in a transition clause and its scope of application;and(3)the presumed intention of BIT's contracting parties regarding to the explicit language of a transition clause.This article will also make an in-depth study of how ICSID arbitral tribunals interpret and apply the transition clause(and also rules relating to the treaty interpretation and application of international agreements in time)and further examine(1)two ways of interpreting the wording of a transition clause by ordinary meaning approach;(2)whether an ICSID tribunal would employ any presumption against retroactivity in absence of specific language for retroactivity in the transition clause;(3)the unreliability to infer the real intention of the BIT's contracting parties with regard to the transition clauses.Finally,this article will also give a critical opinion on China's current BITs regarding the transition clauses and provide China's BIT maker with some helpful clues on re-designing and re-framing a more logical and concrete transition clause.
Keywords/Search Tags:Bilateral Investment Treaty, Transition Clause, Literal Interpretation Approach, Non-retroactive Principal of Treaty, Real Intention between Contracting Parties
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