The Dilemma Of Applying Bilateral Investment Treaties Of China To Macao And The Solution Of It

Special arrangements under "one country,two systems" in our country,the central government shall have the right to foreign concluded Bilateral Investment treaties,the government of the Macao special administrative region in the economic,cultural and other fields have the right to foreign signed in the name of "Macao,China" and the performance of the agreement,including in its own name with other countries concluded a BIT.Then,in the case that China signs a BIT with a third country,but the Macao special administrative region does not sign a BIT with that country,can the Chinese-foreign BIT be applied to the Macao special administrative region? The basic law of the Macao special administrative region of the People's Republic of China(hereinafter referred to as the basic law of the Macao special administrative region)gives a clear answer,namely,Chinese and foreign bits cannot be automatically applied.However,the emergence of the case of Macao Sanum v.Lao government(hereinafter referred to as "world energy case")challenges this answer in judicial practice: The case went through several legal procedures of arbitration,litigation of cancellation of arbitral award and appeal,and the adjudication and judgment were repeated several times.Finally,the court of appeal of Singapore made a final judgment and determined that the BIT signed by China and Laos was applicable to the Macao special administrative region.This judgment is opposite tothe provisions of China's domestic law and the practice of national treaties.After the Lisbon treaty came into force,with the extension based on the common business policy,the Eu has the exclusive right to conclude investment agreements with third countries.Considering the cost and strength of the Macao SAR in negotiating a BIT with the EU,Macao intends to extend the application of the China-EU BIT.Under this background,BIT problem of application of the Macao SAR is not only beneficial to ensure that the international community about the treaty for Hong Kong and Macao to China law and practice to fully understand and accurately understand and avoid the uncertainty of investment dispute settlement,and help to make full use of China's rich resources of BIT of the Macao special administrative region,be better engaged in international investment activities more actively participate in the area along the way,driving the development of economic vitality.At first,this paper illustrates the return before and after arrangement of application of international treaties in the Macao special administrative region for China's domestic law and consistent state treaty practice shows that the Chinese and foreign BIT,of course,not automatically apply to the Macao special administrative region,Macao shall have the right to Macao,China and other countries(regions)in the name of the sign BIT,approved by the government of the Macao special administrative region,the central government decided to sino-foreign bits can be applicable to the Macao special administrative region.The direct reason why the final judgment of " Macao Sanum case" is contrary to the above provisions of China's domestic law lies in the absence of territorial applicable provisions in China-Laos' BIT.However,the provisions of China's domestic law do not have the effect of preferential international law,and the existing applicable international law rules not only cannot conform to the intention of domestic law,but also there is a great dispute over how to apply them.How to explain and apply Article 29 of the Vienna Convention on the Law of Treaties(VCLT)and article 15 of the Vienna Convention on Succession of States in Respect of treaty(VCST)in " Macao Sanum case" is the core issue.It is believed that the lack of form and content in the correspondence between the Lao foreign ministryand the Chinese embassy cannot be considered as "subsequent agreement".It is also unclear and doubtful whether the moving border rules established in article 15 of the Vienna Convention on Succession of States in Respect of treaty are customary international law with universal binding force.Moreover,Macao's return to China is not a change of sovereignty,and the moving border rules,as a rule in the field of treaty succession,cannot be applied to the Macao special administrative region.On the basis of the above argument,this article adopts the method of empirical research,based on the statistics of the Macao special administrative region come to the foreign investment,attract investment relatively concentrated,the main investment areas,and combined with the existing outside Australia BIT conclude,Macao reality factors such as the bargaining power of consideration,that Macao has extended for specific BIT the necessity of both at home and abroad,the Macao basic law also provides extension of the applicable legal feasibility.At the same time,it should also be noted that in extending the application of the sino-foreign BIT,there are obstacles such as lack of procedures,treaty overload and the consent of third countries.Finally,based on a comparative study of the national practice of applying international treaties to other similar special territories in the international community and on the basis of drawing lessons from the merits,this paper puts forward Suggestions on extending the application of the Macao special administrative region to both Chinese and foreign bits from the aspects of application approaches,responsivity and liability for compensation.