The Study On The Legal Status Of State-Owned Enterprises In International Investment Treaties

State-owned Enterprises,translated as "state-controlled Entities" or "state-owned Enterprises",abbreviated as "SCE" or "SOE".State-owned enterprises include Sovereign Wealth Funds(SWF)and state-owned Companies(SOC)in the narrow sense.As one of the main ways of sovereign investment,the investment scale and its influence of state-owned enterprises under the background of international investment are attracting more and more attention.According to the comparison of data,the investment fields of state-owned enterprises are mostly concentrated in the energy investment fields with strategic status such as oil and natural gas.However,from the perspective of the investment behaviors of state-owned enterprises,they are also accompanied by national strategies.In recent years,the state-owned enterprises to participate in foreign investment increased,compared with general private enterprises to participate in international investment process is different,the investment behavior of state-owned enterprises,often with the colour of the exercise of the functions of the government,thus in the state-owned enterprises in investment in the host country easily on behalf of the state in relevant activities,through its behavior due to the country.In addition,although the terms applicable to the definition of state-owned enterprises in domestic laws of various countries are the same or similar,their specific meanings are quite different.Even if the two sides recognize the status of state-owned enterprises as "private investors" in the process of contracting,when disputes occur,there are often differences in identification.Such a complex situation,state-owned enterprises involved in international investment process encountered many problems.The first problem is that the legal status of private investors in state-owned enterprises is inconsistent.This is the inevitable contradiction caused by national conditions and the long history of development.Therefore,the conclusion of the international investment agreement depends on the parties' continuous negotiation and consultation to seek common ground while reserving differences in order to promote investment.The determination of the legal status of state-owned enterprises in the jump of international investment is the premise for the ICSID tribunal to judge the jurisdiction,and an important guarantee to protect the investment of state-owned enterprises and provide relief.Therefore,it has an important impact on the orderly participation of state-owned enterprises in international investment.This paper discusses the existing international investment agreements from two perspectives.The first is the rules and empirical analysis of the legal status of state-owned enterprises in the existing bilateral investment treaty.After several generations of evolution of bilateral investment treaties,the current widely used bilateral investment treaties are investment promotion and protection agreements,and countries often refer to the BIT model of the United States in the conclusion process.In the investment agreements concluded by the United States,the identification of state-owned enterprises has gone through a compromise mode from the high-standard and demanding US-South Korea and US-Singapore model to the American BIT model published in 2012.On the one hand,such a shift indicates that the United States recognizes the status of state-owned enterprises as investors;on the other hand,the United States believes that state-owned enterprises assume the obligations of contracting parties when performing government functions,which is equivalent to state-owned enterprises or assume the dual obligations of contracting parties and investors.In addition,in the multilateral investment agreement,NAFTA agreement,TPP agreement and the recently concluded US-Mexican-American agreement are selected for empirical analysis,and it is found that in the multilateral investment agreement,the legal status of state-owned enterprises is increasingly concerned,and the provisions are increasingly specific.Theauthor also makes a comparative analysis of the European regional trade agreements in recent years.The EU version of the investment treaty adopts the EU competition law to regulate the international investment behavior of state-owned enterprises,which is quite different from the us which attaches great importance to the investment of state-owned enterprises and lists it in a special chapter in the same period.From the perspective of the current investment treaties on the legal status of state-owned enterprises,most of the investment treaties are just general and vague provisions.In practice,the investment of state-owned enterprises is attributed to state behavior,which fails to fundamentally solve the legal status of state-owned enterprises.With the increase of the participation of state-owned enterprises in international investment,the competition neutrality rule is regarded as the institutional support to construct the legal status of state-owned enterprises.The original intention is to solve the problem of fair competition between state-owned enterprises and private enterprises.In the investment treaties,the United States and the European Union promote the evolution of competition neutrality to international economic and trade rules.It is believed that state-owned enterprises will affect the investment environment of fair competition and introduce restrictive threshold to prevent state-owned enterprises from participating in competition.In order to maintain the competitiveness of European and American enterprises as the starting point of the neutral terms of competition,China's state-owned enterprises transnational investment is a great obstacle.In summary,the legal status of state-owned enterprises is the contracting parties in the process of negotiations will be considering one of the problems,but due to the various countries' domestic law regulations and conditions vary,and state-owned enterprises controlled by the government or affect the business activities of the special background,through the analysis of existing treaties,found that the current legal status,tend to recognize the investors of state-owned enterprises for their "private investors" in the field of international investment related protection;At the same time,the identification of state-owned enterprises is more stringent,with additional transparency requirements,non-discriminatory treatment,etc.,some of the investmentbehavior of state-owned enterprises will be attributed to state behavior,assume the corresponding obligations of the contracting parties.Therefore,it is necessary to distinguish the investment purpose and behavior of state-owned enterprises,and make auxiliary judgments with various judgment criteria in the next part.With the increase of state-owned enterprises' investment in foreign countries,overseas investment dispute resolution has become an inevitable problem,and the importance of dispute resolution between investors and host countries has become increasingly prominent.International Centre for Settlement of Investment Disputes(ICSID)is often chosen in bilateral or multilateral Investment agreements signed between sovereign states as the channel to resolve Disputes between national investors of a party and the host country.Since the original intention of the center is to solve the disputes between private investor and sovereign State,when the investor is a state-owned company,ICSID arbitration tribunal shall first judge whether the enterprise is a State investor according to several elements of the jurisdiction of ICSID and not subject to the jurisdiction of ICSID.Based on the analysis of this case,the author finds that the arbitrary tribunal is biased in determining the status of investors in state-owned enterprises,and it can be deemed as "private investors" if it focuses on the nature of investment behaviors as commercial behaviors.However,the purpose of investment activities of state-owned enterprises is usually not single,even if it is not the act of acting as a government agent.Furthermore,the application of the principle of state attribution in the draft articles on the responsibility of states for internationally wrongful ACTS is explained in combination with specific cases.At the end of this chapter,the author makes a comparative analysis of the Broches criterion and the attribution principle of state behavior.ICSID has a low standard for the identification of private investors in state-owned enterprises,and tends to identify a commercial activity,which can be regulated if the investment conforms to the relevant nature of the business.And using country attribution principle analysis,practice,due to the special status of state-owned enterprises and overseas investment projects business complex,phase for a long period,more,as time goes on,and can bear the original target different characteristics as well as the business,or will be considered in terms of that contracting state government side bear corresponding responsibility.The last part mainly analyzes the rules of state-owned enterprises in China's current investment agreement.First announced by the ministry of commerce to our country related rules in China's foreign investment agreement concluded between the comb,found in the investment agreement provisions on state-owned enterprises(SOEs)roughly divided into the following categories: both parties "investors" clearly defined including state-owned enterprises,the contracting party that "investors" include state-owned enterprises,states parties define "investors" on both sides did not mention the state-owned enterprises.Among them,it is the investment agreement concluded between China and Japan and the republic of Korea that first clearly appears state-owned enterprises.Other bilateral investment agreements signed by China and the republic of Korea,Canada,Oman,Kuwait and other countries that include state-owned enterprises include "public institutions" in the definition of investors.In the bilateral investment treaties of Saudi Arabia,Ghana and other countries,the contracting parties explicitly stipulate that state-owned enterprises or governments enjoy the status of private investors,while China only makes general provisions.More often than not,there are no state-owned enterprises on either side,depending on the history of bilateral negotiations,the framework of investment agreements and the domestic laws of the contracting parties for interpretation.Then,it discusses the construction of investment rules and systems of state-owned enterprises under the background of "One Belt And One Road" strategy in China,and the risks that state-owned enterprises encounter in the process of investment in countries along the "One Belt And One Road".The application of ICSID dispute settlement mechanism has encountered great obstacles.China is raising a new dispute settlement mechanism with "One Belt And One Road" investment characteristics based on the behavior of alibi.In the last part,Suggestions are made on how to better help China's state-owned enterprises to "go global" development strategy.Based on the above analysis,Suggestions are first put forward on the construction of relevant rules ofChina's current negotiation of China-US BIT and China-European BIT state-owned enterprises,so as to enhance China's international discourse power.Second,encouraging the state-owned enterprises to use the ICSID mechanism to safeguard their legitimate rights and interests.Meanwhile,the "One Belt And One Road" economic development zone needs a new investment dispute settlement mechanism that conforms to the characteristics of its economic development.Finally,taking "competition neutrality" as the international soft law,the reform of state-owned enterprises is necessary,but it needs to be carried out in an orderly manner in combination with China's special national conditions and the characteristics of economic development at the present stage,and it cannot be achieved in a hurry.This paper focuses on the analysis of the rules of international investment agreements for state-owned enterprises,so as to provide practical Suggestions for the "going out" of state-owned enterprises in China.