5. Emerging Powers and International Investment Agreements

For a brief introduction, see e.g.: Schill (2007), pp. 77 et seqq.

See for an overview: Peters (2018), MN 10.

See e.g. Kong (2003), p. 105; Shan and Gallagher (2013), p. 141.

Yao (1987), pp. 335 et seq., cited after Shan and Gallagher (2013), p. 159.

The first seven BITs were signed with Western States including Sweden (1982), Germany (1983), France (1984), BLEU (Belgium-Luxembourg Economic Union) (1984), Finland (1984), Norway (1984), and Italy (1985). All Chinese BITs can be accessed (together with their current status) at China’s UNCTAD investment policy hub country page available at: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​42.

China-Thailand BIT (1985); China-Singapore BIT (1985); China-Kuwait BIT (1985); China-Sri Lanka BIT (1986).

Cf. Kong (2003), p. 113; Bath (2018), pp. 50 and 73.

Some scholars have pointed out that China’s BITs with developing countries provided for several particularities such as a stronger emphasis on sovereignty and national jurisdiction and greater flexibility on transfer provisions, see: Gallagher and Shan (2009), p. 37. However, to me it appears that these treaties did not markedly differ from Chinese BITs with industrialized countries. See also: Bath (2018), p. 74.

See Sauvant and Nolan (2015), p. 914; see on further restrictions with regard to provisions on transfer of funds: Bath (2018), p. 51.

According to UNCTAD’s IIA Mapping project, 57 Chinese BITs do not contain NT clauses, see e.g. China-Sweden BIT (1982); China-France BIT (1984) and China-Switzerland BIT (1986).

See for a historic overview: Shan and Gallagher (2013), p. 160.

Shan and Gallagher (2013), p. 160 with further references.

Cf. Bath (2018), p. 51.

Cf. Shan and Gallagher (2013), p. 173.

See e.g.: China-Argentina BIT (1992) Article 8 para. 3; China-Peru BIT (1994) Article 8 para. 3; China Indonesia BIT (1994) Article IX para. 3; China-Sri Lanka BIT (1986) Article 13 para. 3; China-Lebanon BIT (1996) Article 8 para. 3; China-Syria BIT (1996) Article 9 para. 3; and China-Cambodia BIT (1996) Article 9 para. 3; see also: Shan and Gallagher (2013), pp. 132 and 172.

People’s Republic of China (1993).

See: Kong (2003), p. 130; Shan and Gallagher (2013), p. 172 with further references.

Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence (only available in Spanish) (19 June 2009); upheld in: Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Annulment (12 February 2015), paras. 72 et seqq. and 210. For an overview of the initial Decision on Jurisdiction and Competence: Newcombe (2009).

Beijing Shougang and others v. Mongolia, PCA Case No. 2010-20, Award (30 June 2017) (not public).

See for that conclusion and the systematization of Chinese BITs across several generations: Shan and Gallagher (2013), p. 140.

Gallagher and Shan (2009), pp. 44 et seq.

See for a list of treaties and their status: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​42.

Germany has signed 155 IIAs. See for a list of treaties and their status: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​78#iiaInnerMenu.

See e.g.: Rajput (2016a), p. 197.

For an introduction see, e.g.: Omkarnath (2016). For a comprehensive analysis see, e.g.: Mishra (1988).

Ranjan (2014), p. 423 with further references.

Foreign Exchange Regulation Act, Act No. 46 of 1973 (19th September 1973).

Ranjan (2014), p. 423 with further references.

Ranjan (2014), p. 423 with further references.

Krishan (2008), pp. 292 et seq.; Ranjan (2014), p. 424.

See e.g.: Ranjan (2014), p. 426.

India’s first BIT was signed with its former colonial ‘master’ the UK, see: India-UK BIT (1974).

All information on numbers of IIAs are taken from UNCTAD’s Investment Policy Hub, available at https://​investmentpolicy​.​unctad.​org/​#iiaInnerMenu. Accessed 12 Sept 2020.

See generally on the rationale of attracting investments by concluding BITs in the Indian context: Chidambaram (1997), cited after: Ranjan (2014), pp. 428 and 430.

For a summary of treaty practice, see e.g.: Ranjan (2014), pp. 427 et seqq.; Rajput (2016a), pp. 208 et seqq.; for a deeper analysis: Ranjan (2019); see for an analysis of more modern Indian BITs that contain broader exception clauses, e.g. the India-Singapore CEPA (2005): Nedumpara (2018), p. 212.

Assessment based on UNCTAD’s IIA Mapping Project.

The Indian Model BIT (2003) is available at: http://​investmentpolicy​hub.​unctad.​org/​Download/​TreatyFile/​2871. Accessed 12 Sept 2020.

Nedumpara (2018), p. 198.

See e.g.: Nedumpara (2018), p. 197.

For background to the Dabhol cases and analysis of legal questions involved, see: Kundra (2008); Bettauer (2009); van Harten (2011).

Known settled cases include: Bechtel Enterprises Holdings, Inc. and GE Structured Finance (GESF) v. The Government of India, UNCITRAL (not public) (2003); Standard Chartered Bank v. Republic of India, UNCITRAL (not public) (2004); Offshore Power Production C.V., Travamark Two B.V., EFS India-Energy B.V., Enron B.V., and Indian Power Investments B.V. v. Republic of India, UNCITRAL (not public) (2004); Erste Bank Der Österreichischen Sparkassen AG v. Republic of India, UNCITRAL (not public) (2004); Credit Suisse First Boston v. Republic of India, UNCITRAL (not public) (2004); Credit Lyonnais S.A. (now Calyon S.A.) v. Republic of India, UNCITRAL (not public) (2004); BNP Paribas v. Republic of India, UNCITRAL (not public) (2004); ANZEF Ltd. v. Republic of India, UNCITRAL (not public) (2004); ABN Amro N.V. v. Republic of India, UNCITRAL (not public) (2004).

Ashok Sancheti v. Germany, (no further information available), settled; Ashok Sancheti v. UK, UNCITRAL, (not public and no further data available as to the outcome) (2006).

White Industries Australia Limited v. Republic of India, UNCITRAL, Final Award (30 November 2011).

Schlemmer (2016), pp. 167 et seq.

See for a brief overview of Nelson Mandela’s and the ANC’s policy on foreign investments during that time: Schlemmer (2016), p. 168; see also: Schlemmer (2020).

The South African constitution that protects private property was only enacted in 1996. See: Woolfrey (2016), p. 267.

For an overview of South African BITs and their status, see: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​195#iiaInnerMenu.

For an overview see: Schlemmer (2016); and Woolfrey (2016), pp. 268 et seqq.

Schlemmer (2016), p. 168 with further references.

See e.g. Grunwald (1971); Campello and Lemos (2015), p. 1060.

Campello and Lemos (2015), pp. 1061 et seq.

See: Campello and Lemos (2015), p. 1062 (this early Brazilian Model BIT is not publicly available).

For a detailed summary of the diverse reason’s for the Brazilian government under Fernando Collor de Mello to sign BITs: Campello and Lemos (2015), pp. 1061 et seqq.

Brazil-BLEU BIT (1999); Brazil-Denmark BIT (1995); Brazil-Finland BIT (1995); Brazil-France BIT (1995); Brazil-Germany BIT (1995); Brazil-Italy BIT (1995); Brazil-Korea BIT (1995); Brazil-Portugal BIT (1994); Brazil-UK BIT (1994).

Brazil-Chile BIT (1994); Brazil-Cuba BIT (1997); Brazil-Korea BIT (1995); Brazil-Venezuela BIT (1995).

This analysis is based on UNCTAD’s IIA mapping project because several Brazilian BITs are only available in Portuguese.

Secretary of Foreign Trade, Ministry of Development, Industry and Foreign Trade Speech delivered at the UNCTAD World Investment Forum 2014: Investing in Sustainable Development. http://​unctad-worldinvestmentf​orum.​org/​wp-content/​uploads/​2014/​10/​Godinho.​pdf. Accessed 11 September 2020.

For a detailed assessment of the national processes leading to Brazil’s failure to ratify signed BITs, see: Campello and Lemos (2015), pp. 1069 et seqq.; see also: Ratton Sanchez Badin and Morosini (2018), pp. 239 et seqq.

FDI inflows in Brazil strongly increased, beginning approximately in 1993, reaching a peak in 2000 (US$33 billion), and after some down-turn reached an all-time peak in 2011 (US$101.2 billion). These numbers are based on World Bank data, available at: https://​data.​worldbank.​org.

Ratton Sanchez Badin and Morosini (2018), p. 240 with further references to official communications (in Portuguese).

Secretary of Foreign Trade, Ministry of Development, Industry and Foreign Trade Speech delivered at the UNCTAD World Investment Forum 2014: Investing in Sustainable Development. http://​unctad-worldinvestmentf​orum.​org/​wp-content/​uploads/​2014/​10/​Godinho.​pdf. Accessed 11 September 2020.

Secretary of Foreign Trade, Ministry of Development, Industry and Foreign Trade Speech delivered at the UNCTAD World Investment Forum 2014: Investing in Sustainable Development. http://​unctad-worldinvestmentf​orum.​org/​wp-content/​uploads/​2014/​10/​Godinho.​pdf. Accessed 11 September 2020.

The CFIA model was published in 2016 and is available at: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryIris/​27#iiaInnerMenu. Accessed 11 Sept 2020. The abbreviation and title of these agreements is not uniform. Ratton Sanchez Badin and Morisini use the acronym ACFI which is based on the original Portuguese title, see: Ratton Sanchez Badin and Morosini (2018), p. 219. My use of the acronym CFIA is based on the official English translation of the agreement provided by the Brazilian Government.

All treaties can be accessed at: https://​investmentpolicy​.​unctad.​org/​international-investment-agreements/​countries/​27/​brazil.

Brazil-Peru ETEA (2016) Chapter 2 (Only available in Portuguese).

Intra-MERCOSUR Cooperation and Facilitation Investment Protocol (2017) (available in Spanish and Portuguese).

For an analysis and overview, see: Pérez Aznar and Choer Moraes (2017).

See: Martins (2017); the ratification status of Brazil’s CFIAs can be assessed at Brazil’s Investment Policy Hub Country Page, but apparently has not been updated for some time, see http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​27.

Presidência da República (Brazil), Decree 9167/2017 (13 October 2017).

Secretary of Foreign Trade, Ministry of Development, Industry and Foreign Trade Speech delivered at the UNCTAD World Investment Forum 2014: Investing in Sustainable Development. http://​unctad-worldinvestmentf​orum.​org/​wp-content/​uploads/​2014/​10/​Godinho.​pdf. Accessed 11 September 2020.

Cf. Ratton Sanchez Badin and Morosini (2018).

See Part III (Institutional Governance and Dispute Prevention) and Part IV (Agenda for Further Investment Cooperation and Facilitation) of the 2015 Brazilian Model CFIA.

Bernasconi-Osterwalder and Dietrich Brauch (2015), p. 1.

Republic of South Africa Department of Trade and Industry Bilateral Investment Treaty Policy Framework Review—Government Position Paper, Pretoria (June 2009) Accessed 11 September 2020, p. 5.

Piero Foresti, Laura de Carli and others v Republic of South Africa, ICSID Case No ARB(AF)/07/1, Award (4 August 2010); the other arbitration case was held confidentially under UNCITRAL arbitration rules and involved the claim by a Swiss investor that South African police failed to provide adequate protection to its property (namely a game farm and a conference centre).For an overview of facts and legal questions involved, see: Peterson (2008); Schlemmer (2016), pp. 186 et seqq.

Swissbourgh and others v. Lesotho, PCA Case No. 2013-29; Besserglik v. Mozambique, ICSID Case No. ARB(AF)14/2; Burmilla Trust and others v. Lesotho, PCA Case No. 2016-21.

See Peterson (2008); Schlemmer (2016), pp. 186 et seqq.

Piero Foresti, Laura de Carli and others v Republic of South Africa, ICSID Case No ARB(AF)/07/1, Award (4 August 2010).

See for a summary of the legal questions involved: Woolfrey (2016), pp. 270 et seq.

Schlemmer (2016), p. 186; Woolfrey (2016), p. 272.

Piero Foresti, Laura de Carli and others v Republic of South Africa, ICSID Case No ARB(AF)/07/1, Award (4 August 2010), p. 32.

Schlemmer (2016), p. 186.

Woolfrey (2016), p. 272.

Republic of South Africa Department of Trade and Industry Bilateral Investment Treaty Policy Framework Review—Government Position Paper, Pretoria (June 2009) Accessed 11 September 2020.

Republic of South Africa Department of Trade and Industry Bilateral Investment Treaty Policy Framework Review—Government Position Paper, Pretoria (June 2009) Accessed 11 September 2020, p. 22.

Republic of South Africa Department of Trade and Industry Bilateral Investment Treaty Policy Framework Review—Government Position Paper, Pretoria (June 2009) Accessed 11 September 2020, p. 54.

Republic of South Africa Department of Trade and Industry Bilateral Investment Treaty Policy Framework Review—Government Position Paper, Pretoria (June 2009) Accessed 11 September 2020, p. 56.

See: Carim X South African Input by the South African Permanent Representative to the WTO, Trade and Development Board, Sixty-Second Session Item 7: Investment for Development—Reforming the International Investment Regime (16 September 2015). http://​investmentpolicy​hub.​unctad.​org/​Upload/​Documents/​Ambassador%20​Xavier%20​Carim_​Speaking%20​Points.​pdf, p. 2; the Cabinet decision itself unfortunately is not available to the public. Further summaries have been provided by: Davies (2014); and Woolfrey (2016), p. 276.

To be more precise, many of South Africa’s first-generation BITs signed immediately after 1994 reached their term of validity and were simply not renewed. BITs terminated include BITs with BLEU, Spain, Netherlands, Denmark, France, Germany, Switzerland, United Kingdom and Austria. Information is taken from UNCTAD’s Investment Policy Hub and is available at: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits/​195.

Protection of Investment Act, Act No. 22 of 2015, vol 606 (15 December 2015). Government Gazette (South African Investment Protection Act).

See: Woolfrey (2016), p. 277.

Woolfrey (2016), p. 277.

Woolfrey (2016), pp. 267 and 285 et seqq.

South Africa-Zimbabwe BIT (2009).

Schlemmer (2016), p. 169.

SADC Model Bilateral Investment Treaty Template with Commentary (2012). http://​www.​iisd.​org/​itn/​wp-content/​uploads/​2012/​10/​SADC-Model-BIT-Template-Final.​pdf. Accessed 11 September 2020.

Ibid. p. 3.

Burke-White (2015), p. 73.

Davies (2014).

White Industries Australia Limited v. Republic of India, UNCITRAL, Final Award (30 November 2011).

See for a different perspective e.g.: Nedumpara (2018), p. 200 (“The outcome in White Industries brought into the centre stage the importance of policy space in trade and investment treaty negotiations.”)

See for a summary of arguments raised by Indian officials and counterarguments against the perception that the award was an ‘attack against the Indian judiciary’: Ranjan (2014), p. 445.

See for critical assessments e.g.: Sanan (2012); Kachwaha (2013).

See e.g. Berschader v. Russia, Stockholm Chamber of Commerce, Case No. 080/2004, Award (21 April 2006) (“While it is universally agreed that the very essence of an MFN provision in a BIT is to afford to investors all material protection provided by subsequent treaties, it is much more uncertain whether such provisions should be understood to extend to dispute resolution clauses.”).

Schill (2009), p. 519 with further references of supportive awards; see in more depth also: Schill (2014).

See for the much criticised award that promoted such a vast interpretation: Maffezini v. Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (25 January 2000), para. 38–64 (English Translation from Spanish Original, available at: https://​www.​italaw.​com/​sites/​default/​files/​case-documents/​ita0479.​pdf); see for the most often cited adverse decision: Plama Consorium Limited v Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction (8 February 2005), paras. 223 et seqq. For a discussion, see: Schill (2016).

See Ranjan (2014), p. 444 with reference to unpublished interviews with officials of the Indian Ministry of Finance and Commerce.

Since 2010, India has become a respondent in fourteen international investment arbitrations, all of which are currently pending. A list of cases and their status is available at UNCTAD’s Investment Dispute Settlement Navigator webpage, available at: http://​investmentpolicy​hub.​unctad.​org/​ISDS/​CountryCases/​96?​partyRole=​2.

See e.g.: Vodafone v. India (I), PCA Case No. 2016-35 (not public), Notice of Arbitration (17 April 2014); Cairn v. India, PCA Case No. 2016-7 (not public), Notice of Arbitration (2015).

See e.g.: Forum against FTAs (2013); Donttradeourlivesaway (2012); see also: Ranjan (2014), p. 446.

See for a summary e.g.: Ranjan and Anand (2018), pp. 13 et seqq.

See on the process and for an overview of an early Indian Ministry of Commerce paper on the reform which is not publicly available: Ranjan (2014), pp. 439 et seqq.

Ranjan (2014), p. 440.

The Indian Draft Model BIT is available at: https://​www.​mygov.​in. Accessed 12 Sept 2020.

Law Commission of India Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty, Report No. 260 (August 2015).

Law Commission of India Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty, Report No. 260 (August 2015), p. 41.

Law Commission of India Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty, Report No. 260 (August 2015), p. 5.

Jain (2016).

Indian Model BIT (2016), available at: http://​investmentpolicy​hub.​unctad.​org/​Download/​TreatyFile/​3560.

Rajput (2016b), p. 205; see in a similar vein: Hanessian and Duggal (2015).

See: Statement by Shrimati Nirmala Sitharaman Minister of State of the Ministry of Commerce & Industry, Lok Sabha, Unstarred Question No. 1290, to be answered on Monday, the 25th July 2016 (2016). http://​dipp.​nic.​in/​sites/​default/​files/​lu1290.​pdf. Accessed 12 September 2020.

See: Statement by Shrimati Nirmala Sitharaman Minister of State of the Ministry of Commerce & Industry, Lok Sabha, Unstarred Question No. 1290, to be answered on Monday, the 25th July 2016 (2016). http://​dipp.​nic.​in/​sites/​default/​files/​lu1290.​pdf. Accessed 12 September 2020.

See e.g. India-Netherlands BIT (1995) Article 16; India-Czech Republic BIT (1996) Article 16; India-Tajikistan BIT (1995) Article 15 para. 1.

See: Statement by Shrimati Nirmala Sitharaman Minister of State of the Ministry of Commerce & Industry, Lok Sabha, Unstarred Question No. 1290, to be answered on Monday, the 25th July 2016 (2016). http://​dipp.​nic.​in/​sites/​default/​files/​lu1290.​pdf. Accessed 12 September 2020.

The status of Indian BITs is available at: http://​investmentpolicy​hub.​unctad.​org/​IIA/​CountryBits.

Government of India Ministry of Finance Department of Economic Affairs (2016).

According to UNCTAD’s IIA Mapping Project, only 30 out of 87 Indian BITs include modalities for amendment or renegotiation, yet these provisions seem to not directly refer to joint interpretative statements, see e.g. Denmark-India BIT (1995) Article 15; Armenia-India BIT (2003) Article 14; Colombia-India BIT (2009) Article 16.

See: Dörr (2018), p. 595 (MN 74).

See the listed BITs and their expiry dates in Government of India Ministry of Finance Department of Economic Affairs (2016).

See e.g. India-Tajikistan BIT (1995) Article 15 para. 2.

Press Information Bureau Government of India Cabinet Approves Joint Interpretative Notes on the Agreement Between India and Bangladesh for Promotion and Protection of Investments (12 July 2017). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​167345. Accessed 11 September 2020.

Press Information Bureau Government of India Cabinet Approves Joint Interpretative Declaration Between India and Colombia Regarding the Agreement for the Promotion and Protection of Investments Signed on November 10, 2009 (10 November 2017). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​173390. Accessed 11 September 2020.

Belarus-India BIT (2018), text available at https://​investmentpolicy​.​unctad.​org/​international-investment-agreements/​countries/​96/​india.

In 2016 official press releases indicated that such a BIT had been signed, see: Press Information Bureau Government of India Cabinet Approves Bilateral Investment Treaty Between India and Cambodia to Boost Investment (27 July 2016). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​147849. Accessed 11 September 2020.

Brazil-India ICFA (2020).

The Model BIT can be found in Shan and Gallagher (2013), Appendix IV (“Chinese Model BIT Version III (Current)”).

See e.g. Berger (2015), p. 856; Bath (2018), pp. 48 and 60 et seqq.

Berger (2015), pp. 856 et seq.

Cai (2009), p. 459.

See also: Berger (2015), pp. 860 et seq.

See e.g. Compilation and Translation Bureau, Central Committee of the Communist Party of China (2016), Chapter 5 Section 4 (“We will work with more countries to sign high-standard bilateral investment agreements”); For an overview and further references to government statements and official documents, see: Bath (2018), p. 55. See generally on China’s support for the liberalization of both trade and investment: Jinping (2017) (“We must remain committed to developing global free trade and investment, promote trade and investment liberalization and facilitation through opening-up and say no to protectionism […] We will expand market access for foreign investors, build high-standard pilot free trade zones, strengthen protection of property rights, and level the playing field to make China’s market more transparent and better regulated.”).

According to UNCTAD’s Investment Policy Hub, the latest BIT signed (but not yet in force) is the China-Turkey BIT (2015) and China has signed several FTAs with investment chapters recently, such as the China-Macao Agreement on Trade in Services (2015), the China-Georgia FTA (2017), and China-Hong Kong CEPA Investment Agreement (2017), of which the treaty with Hong Kong has already entered into force.

RCEP has been signed in November 2020. The text is available at: https://​rcepsec.​org/​legal-text/​. The agreement also contains an investment chapter. Given that the text only got available at the stage of proofing this book a thorough analysis could not be included.

See on the market access issue: Bath (2018), pp. 55 et seqq.; see for an overview of negotiations and prospective outcomes also: Cai (2009).

See e.g.: Sauvant and Nolan (2015), p. 898; Bath (2018), pp. 48 and 83.

See for an in-depth assessment: Sauvant and Chen (2014); for overviews, see e.g.: Sauvant and Nolan (2015), p. 896; and Bath (2018), pp. 52 et seq.

Since the Twelfth Five-Year Plan China has pursued a strategy of further opening its economy, including substantial liberalization of its regulation of inbound investments. In that regard China has shifted towards a ‘negative list’ system, according to which market access is granted in principle and only some sectors are exempted. Still, the negative list issued in 2016 was a disappointment for foreign investors seeking market access. For example the European Chamber of Commerce criticised persisting protectionist measures and slow and uneven progress of the implementation of proposed Open Economy measures, see: European Chamber of Commerce in China (2017); for an overview of regulatory changes and China’s ‘open economy’ policy and its relation to IIAs: Bath (2018), pp. 57 et seqq.

Even non-SOEs are often linked to China’s government as top executives and board members include high-ranking members of the CCP, see: Milhaupt and Zheng (2015).

For an overview of rising scepticism against Chinese investments, see: Sauvant and Nolan (2015), pp. 901 et seqq.

See e.g. recent proposals by the European Commission to establish a framework for screening foreign direct investments and in particular those involving State owned companies: European Commission Press Office (2017); the U.S. Foreign Investment and National Security Act, Public Law 110-149 (2007), available at https://​www.​gpo.​gov, which requires M&As by state-controlled enterprises to be notified and subjects them to further investigation; in a similar vein Canada has issued guidelines on investments by state-owned enterprises that are subject to a review under the Investment Canada Act (ICA) which among other things demands such investors to prove the investment’s commercial orientation and freedom from political influence, see: Government of Canada (n.d.); for a summary of the US and Canadian initiatives and further examples and references: Sauvant and Nolan (2015), pp. 910 et seq.

In 2012, President Barack Obama in 2012 vetoed a Chinese windmill project near a military base in Oregon on the basis that the project was a concern for national security. This was the first such veto in 22 years and only the second one in the history of the Committee on Foreign Investment in the United States, see: The Guardian (2012). In 2017, President Donald Trump blocked the sale of a U.S. semiconductor maker to a consortium backed by a Chinese State-owned company on the basis of national security concerns; see: Anna Swanson (2017).

Garcia-Herrero et al. (2015), p. 8; See on the difficulties to assess the geographic distribution of Chinese FDI also: Sauvant and Nolan (2015), p. 894; Bath (2018), p. 54.

Garcia-Herrero et al. (2015), p. 8.

Isanga (2010).

A comprehensive empirical study on concerns surrounding Chinese investment among different actors (governments, media, business community and trade unions) in several important host countries has been provided by Sauvant and Nolan (2015), pp. 901–913.

See for the argument that China increasingly seeks pre-established market access: Bath (2018), pp. 57 et seqq.

An overview of cases is provided by UNCTAD’s investment policy hub, available at: https://​investmentpolicy​.​unctad.​org/​investment-dispute-settlement/​country/​42/​china/​respondent. Accessed 12 Sept 2020.

Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence (only available in Spanish) (19 June 2009); Sanum Investments Limited v. The Government of the Lao Democratic People’s Republic, PCA Case No. 2013-13; China Heilongjiang, Shougang Mining et al. v. Mongolia, PCA Case No. 2010-20; Ping An Life Insurance Company of China, Ltd and Ping An Insurance (Group) Company of China, Ltd v. Kingdom of Belgium, ICSID Case No. ARB/12/29; Beijing Urban Construction Group Co Ltd v Republic of Yemen, ICSID Case No. ARB/14/30.

Ansung Housing Co, Ltd v People’s Republic of China, ICSID Case No. ARB/14/25, Award (9 March 2017).

Ekran Berhad v People’s Republic of China, ICSID Case No. ARB/11/15 (The case was filed on 24 May 2011 but was suspended on 22 July 2011 upon joint request dated 16 May 2013).

Hela Schwarz GmbH v People’s Republic of China, ICSID Case No. ARB/17/19, Notice of Arbitration (21 June 2017).

See also: Sauvant and Nolan (2015), p. 931.

See in that direction e.g. Wang (2011), p. 19; White (2003), pp. 58 et seqq.

Sauvant and Nolan (2015), p. 931.

Sauvant and Nolan (2015), p. 933.

Brazil-India ICFA (signed in 2020) available at: https://​investmentpolicy​.​unctad.​org/​international-investment-agreements/​treaty-files/​5912/​download.

For more on the role of emerging powers in mega-regional trade agreements, see: Sect. 5.3.1.3.

BRICS Perspective on International Investment Agreements (2014). http://​brics.​itamaraty.​gov.​br/​category-english/​21-documents/​227-brics-perspective-on-international-investment-agreements. Accessed 12 September 2020.

Ibid. (Highlighting is my own).

A 2015 common statement further indicates that the BRICS dialogue surrounding investment policies and international investment rules is ongoing, see: BRICS The Fifth Meeting of the BRICS Trade Ministers: Joint Communiqué, Moscow, Russia (7 July 2015), para. 17.

See on ongoing discussions at UNCITRAL about the reform of international investment arbitration: Roberts (2017); see on reforms within ICSID: https://​icsid.​worldbank.​org/​en/​Pages/​about/​Amendment-of-ICSID-Rules-and-Regulations.​aspx.

In 2017, BRICS Trade Ministers reiterated that they “fully preserve the right to regulate, national policy space, policy making and approaches to investment in […] bilateral, plurilateral and multilateral frameworks and processes”, see: BRICS 7th Meeting of the BRICS Trade Ministers Statement, Shanghai (2 August 2017), para. 6.

BRICS Outlines for BRICS Investment Facilitation, Annex II to the 7th Meeting of the BRICS Trade Ministers Statement (31 August 2017).

The project is available online at: http://​investmentpolicy​hub.​unctad.​org/​IIA. In the following reference is made to “UNCTAD’s IIA Mapping Project”. Quantitative assessments are easily replicable by using the website.

This follows from Article 31 para. 2 VCLT; see also: Dörr (2018), p. 585 (MN 55).

See e.g. Germany-Pakistan BIT (1959).

According to UNCTAD’s IIA Mapping Project, of 174 IIA signed between 2010–2018, 25 contain such a reference or a comparable one.

According to UNCTAD’s IIA Mapping Project, of 174 IIA signed between 2010–2018, 61 contain such a reference.

According to UNCTAD’s IIA Mapping Project, of 174 IIA signed between 2010–2018, 63 contain such a reference.

According to UNCTAD’s IIA Mapping Project, of 174 IIA signed between 2010–2018, 60 contain such a reference.

According to UNCTADs Mapping Project, only 11 IIAs contain all named references and 27 contain all except the reference to the right to regulate policy space.

Chinese Model BIT (1997) Preamble.

China-Uzbekistan BIT (2011) Preamble; China-Korea FTA (2015) Preamble.

See: China-Trinidad and Tobago BIT (2002), Preamble; China-Guyana BIT (2003) Preamble; China-Japan-Republic of Korea Trilateral Investment Agreement (2012) Preamble.

Australia-China FTA (2015) Preamble (State parties uphold “the rights of their governments to regulate in order to meet national policy objectives, and to preserve their flexibility to safeguard public welfare”).

China-Tanzania BIT (2013) Preamble (“Respecting the economic sovereignty of both States”); China-Guyana BIT (2003) (“Respecting the sovereignty and laws of the Contracting Party within whose jurisdiction the investment falls”).

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 270 IIAs contain such an exclusion, most of which have been signed in the twenty-first century.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 89 IIAs contain such an exclusion, most of which have been signed in the twenty-first century.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 81 IIAs contain such an exclusion, most of which have been signed in the twenty-first century.

See e.g. Qureshi and Ziegler (2011), p. 502; see on the historical evolution and broadening of what was considered an internationally protected investment: Sornarajah (2010), pp. 11 et seqq.

This test has been developed in the context of interpreting the ICSID convention and is named after the case in which it was first applied, namely: Salini Construtorri S.p.A. and Italstrade S.p.A. v. Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction (23 July 2001). English Translation in International Law Monitor 42, pp. 609–624 and 622 (para. 52). For more on the historical development of these criteria and the interpretation of the term ‘investment’ under ICSID, see: Bischoff and Happ (2015), MN 17–44.

See with reference to later arbitration awards questioning the Salini-test and in particular the fourth criteria: Grabowski (2014).

For a critical discussion and overview, see e.g.: Bischoff and Happ (2015), MN 39.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 2494 IIAs use an asset-based definition.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 51 IIAs contain such a limitation to the definition of investor or exclude other specific assets.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 28 IIAs contain enterprise-based definitions of investment.

Unfortunately, literature on enterprise-based definitions is sparse. Most general treatises of international investment law do not even mention such definitions. Sornarajah (2010), p. 10 (Fn. 28) briefly argues in a footnote that there is no substantial difference.

SADC Model BIT (2012) Commentary, pp. 12 et seq.

South African Protection of Investment Act (2015) Article 2 para 1 a)–c).

South African Protection of Investment Act (2015) Article 2 para. 2 (The clause only states that “an enterprise may possess assets such as, amongst others”).

Forere (2018), p. 266.

Model CFIA (2015) Article 2 para. 4 (emphasis added).

Model CFIA (2015) Article 3 para. 1.3.

Indian Model BIT (2016) Article 1 para. 4.

Indian Model BIT (2016) Article 1 para. 3 (i).

Indian Model BIT (2016) Article 1 para. 4 (i).

Indian Model BIT (2016) Article 1 para. 4.

See for a critical appraisal of the clause and a summary of inconclusive arbitration awards on the subject matter: Ranjan and Anand (2018), pp. 20 et seq. with further references.

A definition of local government is included in Article 1 para. 7. Further, local governments must be discerned from Sub-National State governments or Union Territory administrations, see Article 1 para. 12.

Burke-White and von Staden (2008), p. 370; Schill and Briese (2009); Salacuse (2010), p. 345.

Chinese Model BIT (1997) Article 1 para. 1.

According to UNCTAD’s IIA Mapping Project, of 112 mapped Chinese IIAs, 8 IIAs contain such a limitation of scope.

According to UNCTAD’s IIA Mapping Project, of 112 mapped Chinese IIAs only one contains such a limitation of scope, namely the Australia-China FTA (2015).

According to UNCTAD’s IIA Mapping Project, of 112 mapped Chinese IIAs only two IIAs contain such a limitation of scope, namely the Australia-China FTA (2015) and the China-Japan BIT (1988).

Numbers are based on UNCTAD’s IIA Mapping Project.

According to UNCTAD’s IIA Mapping Project, of 2572 mapped treaties 378 contain no NT clause and only 38 do not contain an MFN provision.

For an overview, see: Reinisch (2015); It must be noted that even the notorious Calvo Doctrine embraced national treatment, albeit in that case national treatment was understood as limiting the protections of foreigners rather than enlarging them.

According to UNCTAD’s IIA Mapping Project, only 165 out of 2572 mapped treaties cover the pre- and post-establishment phase.

See: Mestral (2015), at MN 2 with further references.

See for an overview: Mestral (2015) Examples include U.S. Model BIT (2004) Article 3 and NAFTA (1993) Article 1102 para. 1, 1103 para. 1 and 1106 para. 1.

See e.g. NAFTA, Annex I, at I-C-10, I-M-55, I-U-13; Annex II, at II-C-9, II-M-11, II-U-5.

Model CFIA (2015) Article 5 para. 3.

Fn. 2 of Article 4 Indian Model BIT (2016).

South African Protection of Investment Act (2015) Article 7 paras. 1–2.

SADC Model BIT (2012) Article 3.

SADC Model BIT (2012) Article 4 paras. 1–3.

South African Protection of Investment Act (2015) Article 8 para. 2.

SADC Model BIT (2012) Commentary, p. 21.

Chinese Model BIT (1997) Article 2 paras. 2 and 3; this indicates that the provision only prohibits discriminatory means other than laws and regulations, see: Shan and Gallagher (2013), p. 157.

Only some recent BITs with developing countries are consistent with the Chinese Model BIT (1997), see; China-Tanzania BIT (2013), Article 3 para. 1 (“Without prejudice to its applicable laws and regulations, with respect to the operation, management, maintenance, use, enjoyment, sale or disposition of the investments in its territory, each Contracting Party shall accord […]”); see also: China-Uzbekistan BIT (2011) Article 3.

See: Canada-China BIT (2012) Article 6 para. 3.

See e.g. China-Bosnia and Herzegovina BIT (2002) Protocol, Ad Article 3, paragraph 1; Germany-China BIT (2003) Protocol, Ad Article 2 and 3; Finland China BIT (2004) Protocol, Ad Article 2, paragraph 3 and Article 3, paragraphs 2 and 3; China-New Zealand FTA, Article 138; for a further analysis see: Gallagher and Shan (2009), pp. 65 and 90; Sauvant and Nolan (2015), p. 923.

Bath (2018), p. 56.

Bath (2018), p. 56.

See for an overview of experiments pursued in Shanghai and exceptions for Taiwanese investors: Bath (2018), pp. 56 et seq.

Australia-China FTA (2015) Article 9.3 para. 1–4.

Australia-China FTA (2015) Article 9.12 and Fn. 5.

See: China-Korea FTA (2015) Annex 22-A, A.3.

China-Hong Kong CEPA Investment Agreement (2017) Article 5 para. 1–2 (covering the establishment and acquisition of investments), Annex 2 (exclusions).

Shan and Gallagher (2013), p. 160; Sauvant and Nolan (2015), p. 923 with further references.

Talley (2017).

See: Schill (2009) and Schill (2014).

Model CFIA (2015) Article 6.

See for more details below Sect. 5.3.1.6.

See for a comprehensive overview: Ratton Sanchez Badin and Morosini (2018), pp. 223 et seqq.

Some commentators have suggested that these MFN limitations might protect Brazil from becoming a respondent in ISDS cases via MFN clauses, see: Ratton Sanchez Badin and Morosini (2018), p. 228. This is not correct, as MFN would only allow investors to make use of provisions in other IIAs of the host country, but Brazil has not ratified such IIAs.

Model CFIA (2015) Article 6 para. 4.

All of the 122 Chinese investment treaties mapped by UNCTAD’s IIA mapping project contain MFN clauses.

Shan and Gallagher (2013), pp. 160 et seq.

See e.g.: China-New Zealand FTA (2008) Article 139 para. 2; China-Colombia BIT (2008) Article 3 para.3; ASEAN-China Investment Agreement (2009) Article 5 para. 4; China-Uzbekistan BIT (2011) Article 3 para. 3; China-Japan-Korea Trilateral Investment Agreement (2012) Article 4 para. 3; Australia-China FTA (2015) Article 9.4 para. 2.

See e.g. Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence (only available in Spanish) (19 June 2009), Decision on Annulment, paras. 72 et seqq.

White Industries Australia Limited v. Republic of India, UNCITRAL, Final Award (30 November 2011).

SADC Model BIT (2012) Commentary, p. 22.

See with regard to the case of India: Ranjan and Anand (2018), p. 20.

See on the importance of FET e.g.: Schreuer (2005); Dolzer (2005); for an in-depth study of its contents, see e.g.: Tudor (2009).

See e.g. CETA (2016) Article 8.10 para. 4.

See in that direction: Ranjan and Anand (2018), p. 30.

SADC Model BIT (2012) Commentary, p. 22.

SADC Model BIT (2012) Commentary, p. 23.

SADC Model BIT (2012) Commentary, pp. 22 et seqq. (on p. 24 the commentary notes that the provision has been developed by South Africa).

SADC Model BIT (2012) Commentary, p. 24.

Article 6 para. 2–3.

The IIA Mapping project lists only 4 out of 112 mapped Chinese investment treaties that do not explicitly contain FET clauses. See also: Sauvant and Nolan (2015), p. 921.

Article 3 Chinese Model BIT:

See e.g. China-Cyprus BIT (2001) Article 9 para. 7; China-Czech Republic BIT (2005), Article 9 para. 5; China-Mexico BIT (2008), Article 5 para. 2; China-Colombia BIT (2008) Article 2 para 3–4; China-Japan-Republic of Korea Trilateral Investment Agreement (2012) Article 2 para. 3–4.

China-Mexico BIT (2008) Article 5 para. 2; China-Japan-Korea Trilateral Investment Agreement (2012) Article 3 para. 2; China-Colombia BIT (2008) Article 2 para. 3–4; China-Canada BIT (2012), Article 4; China-Republic of Korea FTA (2015), chapter 12 (investment), Article 12.5 para. 2.

See: China-Colombia BIT (2008) Article 2 para. 4 c) (“’Fair and Equitable Treatment’ includes the prohibition against denial of justice in criminal, civil, or administrative proceedings in accordance with the general accepted principles of customary law.”).

Australia-China FTA (2015) Chapter 9 (investment).

China-Tanzania BIT (2013) Article 5 para. 2.

China-Hong Kong CEPA Investment Agreement (2017) Article 4 para. 2 (i).

China-Hong Kong CEPA Investment Agreement (2017) Article 4 para. 2 (i).

According to UNCTAD’s Mapping project, only 8 out of 2572 mapped treaties do not contain an expropriation clause.

Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 255; see also: Philip Morris Brands Sarl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award (8 July 2016), para. 307, 420; with further references: Barker (2017), pp. 234 et seqq.

See for a narrower interpretation e.g. Daimler Financial Services AG v. Argentine Republic, ICSID Case No. AR/05/1, Award (22 October 2012), para. 100.

Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 255.

Numerous concepts exist of how to strike a better balance between the concerns of investors and legitimate public interests, such as, allowing States wide discretion in exercising their ‘police powers’, to decrease the standard of review in cases in which public concerns are affected, or to require a strict proportionality test between the effect of the investment and the public interest behind [of concern to ?] the regulatory measures. Still, so far none of these proposals appear to have achieved the status of a new prevailing opinion, neither in literature, nor in practice.

Model CFIA (2015) Article 7; see also: Bernasconi-Osterwalder and Dietrich Brauch (2015), p. 8.

Model CFIA (2015) Article 7 para 1 a)–d).

While wording in BITs on the requirements of compensation are quite diverse, it appears that most treaties are built on some variation of the Hull-Formula, requiring compensation to be prompt (“without undue delay”), adequate (“equivalent to fair market value”) and effective (“Be completely payable and transferable”) See e.g.: Salacuse (2010), pp. 324 et seqq.

Article 7 para. 5 (“For greater certainty, this article only provides for direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or ownership rights.”).

See e.g. Brazil-Malawi BIT (2015) Article 8 para. 2.

Indian Model BIT (2016) Article 5 para. 1 (“Neither Party may nationalize or expropriate an investment of an investor […] either directly or through measures having an effect equivalent to expropriation”).

Article 5 para. 3 a) (ii) Indian Model BIT.

Article 5 para.3 b) (i)–(iv).

Article 5 para.3 b) (i).

Ranjan and Anand (2018), p. 35.

See e.g.: EU-Canada CETA (2016) Annex 8-A(3); see also the discussion of the Chinese expropriation clause below.

Indian Model BIT (2016) Article 5 para. 2.

Indian Model BIT (2016) Article 26 para. 3, Fn. 4.

Trubek and Rolland (2018), p. 398; see also their updated version of the paper in: Rolland and Trubek (2019). pp. 75 et seqq.

Chinese Model BIT (1997) Article 4; for an overview of BIT practice see: Shan and Gallagher (2013), p. 163.

Shan and Gallagher (2013), p. 163.

Article 4 para. 1. b) 1997 Model BIT.

See e.g.: China-Japan-Korea Trilateral Investment Agreement (2012), Article 11 para. 1 c) (“in accordance with its laws and international standard of due process of law”); China-Colombia BIT (2008) Article 4 para. 1 b) (“under domestic legal procedure and respecting due process”); China-Tanzania BIT (2013) Article 6 para. 1 b) (“in accordance with domestic legal procedure and relevant due process”).

Shan and Gallagher (2013), p. 164; see also: Gallagher and Shan (2009), chapter 7; see e.g. Chinese Model BIT (1997) Article 4 para. 2.

According to the IIA Mapping Project, 110 out of 112 mapped Chinese treaties cover indirect expropriations.

See e.g. China-India BIT (2006) Protocol, III. Ad Article 5; China-Colombia BIT (2008) Article 4 para. 2; China-Uzbekistan BIT (2011) Article 6 para. 1-2; China-Japan-Republic of Korea Trilateral Investment Agreement (2012) Protocol para. 2; China-Tanzania BIT (2013) Article 6 para. 2; China-Canada BIT (2012) Annex B.10; China-Republic of Korea BIT (2015) Protocol para. 2 b).

See U.S. Model BIT (2004) Annex B (Expropriation) para. 5 b) (“Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations.”).

See e.g.: China-India BIT (2006) Protocol, III. Ad Article 5 para. 2 iv); Mainland China-Hong Kong CEPA Investment Chapter (2017) Article 11 and Annex 3.

China-Japan-Republic of Korea Trilateral Investment Agreement (2012) Protocol para. 2 c); see also: China-Republic of Korea BIT (2015) Protocol para. 2 c); China-Colombia BIT (2008) Article 4 para. 2 c); China-Tanzania BIT (2013) Article 6 para. 3; China-Canada BIT (2012) Annex B.10, para. 2.

Only the recent Australia China FTA (2015) investment chapter does not contain an expropriation clause, however, State Parties have agreed to further negotiate a more comprehensive investment chapter also containing an expropriation clause, see Article 9.9 (Future Work Program) para. 3 b) (ii).

SADC Model BIT (2012) Commentary, p. 24.

SADC Model BIT (2012) Commentary, p. 25.

An earlier draft of the Protection of Investment Act contained a detailed provision on expropriations which also included a list of acts which should not be regarded as expropriations, however, this approach apparently was abandoned in the continuing legislative process. See for a summary of the contents of the earlier draft: Woolfrey (2016), pp. 280 et seqq.

e.g. Artikel 14 German Grundgesetz (GG).

South African Constitution, Bill of Rights, Section 25.

Agri South Africa v. Minister for Minerals and Energy, Case CCT 51/12, Constitutional Court of South Africa (2013). ZACC 9, paras. 59 et seqq.; on further efforts to change the constitution in order to allow for expropriation without compensation: Schlemmer (2020), p. 151.

See: Woolfrey (2016), p. 280 who claims that this even contradicts the customary international minimum standard.

Agri South Africa v. Minister for Minerals and Energy, Case CCT 51/12, Constitutional Court of South Africa (2013). ZACC 9, paras. 61 et seqq.

See: Forere (2018), pp. 276 et seq. with reference to relevant judgments by South African courts.

According to UNCTAD’s IIA Mapping Project, among all IIAs signed before the year 2000 only 87 contain a general public policy exception protecting public health and the environment.

According to UNCTAD’s IIA Mapping Project, of 980 IIAs concluded between 2000–2018, 156 include a general public policy exception for public health and the environment and another 99 contain other public policy exceptions (e.g. cultural heritage, public order etc.). Of 174 IIAs concluded between 2010 and 2018 nearly half (81) contain public health and environment exceptions and 64 contain other public policy exceptions.

Burke-White and von Staden (2008), p. 370; Schill and Briese (2009); Salacuse (2010), p. 345.

Prudential carve outs mostly exempt regulatory measures that aim to maintain the safety and integrity of financial institutions and the financial system as a whole.

According to UNCTAD’s IIA Mapping Project, of 174 IIA concluded between 2010–2018, 67 excluded tax measures from the scope of the treaty, 63 contained prudential carve outs for financial measures and 105 contained security exceptions.

Brazilian Model CFIA (2015) Article 16 para. 1.

Ratton Sanchez Badin and Morosini (2018), p. 232.

Indian Model BIT (2016) Article 32; the Model further incorporates a self-judging security clause in Article 33.

Indian Model BIT (2016) Article 32.

See for a critique in that regard: Ranjan and Anand (2018), p. 37.

According to the IIA Mapping Project, 12 out of 112 mapped Chinese investment agreements contain security exceptions, of which four contain self-judging security clauses, including the Australia-China FTA (2015), the China-Colombia BIT (2008), the China-Japan-Republic of Korea Trilateral Investment Agreement (2012), and the China-Republic of Korea FTA (2015).

China-Canada BIT (2012) Article 33 para. 3.

See: Canadian Model BIT (2004) Article 10 (“General Exceptions”).

Mainland China-Hong Kong CEPA Investment Agreement (2017) Article 22 para. 1; further, the agreement contains a broad-based exception in Article 22 para. 6 which reserves for “one side” (not further specified but most likely referring to Mainland China) “the right to establish or maintain any restrictive measures relating to investors and covered investment of the other side in the event that the implementation of this Agreement causes substantial impact on its sectors or public interests.”

China-Tanzania BIT (2014) Article 10 para. 2.

SADC Model BIT (2012) Article 25 para. 26.

SADC Model BIT (2012) Article 25 para. 1.

According to UNCTAD’s IIA mapping project, at least 212 IIAs of all IIAs mapped contain a clause on the prohibition of performance requirements.

Article 2 para. 2 and Annex to the TRIMS agreement.

See: Part III of the Model CFIA (2015) entitled “Institutional Governance and Dispute Prevention”.

Model CFIA (2015) Article 17 (Joint Committee) and Article 18 (Focal Points or Ombudsmen).

See also: Bernasconi-Osterwalder and Dietrich Brauch (2015), p. 1.

Bernasconi-Osterwalder (2014), p. 1, reports that to her knowledge only four such cases have ever been brought under investment treaties.

SADC Model BIT (2012) Commentary, pp. 51 et seqq.

SADC Model BIT (2012) Article 28.

Protection of Investment Act (2015) Article 13 para. 5.

Protection of Investment Act (2015) Article 13 para. 4.

Protection of Investment Act (2015) Article 13 para. 1–3.

Trubek and Rolland (2018), p. 425. Additionally, but of minor importance, ISDS is only available for violations of Chapter II with the exception of Article 9 and 10.

Indian Model BIT (2016) Article 15 para. 2.

Indian Model BIT (2016) Article 15 para. 1.

Indian Model BIT (2016) Article 15 para. 2.

See on the exact procedure Indian Model BIT (2016) Article 15 and 16.

The first such comprehensive ISDS provision was incorporated in the China-Barbados BIT (1998) Article 9.

See e.g. China-Finland BIT (2004) Article 9 para. 1; China-Uganda BIT (2004) Article 8 para. 1; China-Canada BIT (2012) Article 20; see for a further analysis: Sauvant and Nolan (2015), p. 915.

See e.g. Barbados-China BIT (1998) Article 9 para. 3; China-Mexico BIT (2008) Article 13 para. 5; China-Japan-Korea Trilateral Investment Agreement (2012) Article 15 para. 7; China-Tanzania BIT (2013) Article 13 para. 2; The respective rules on administrative review for China can be found in: Law of the People’s Republic of China on Administrative Reconsideration, Adopted at the 9th Meeting of the Standing Committee of the Ninth National People’s Congress on April 29, 1999 and promulgated by Order No. 16 of the President of the People’s Republic of China on April 29, 1999 (1999). Only a small number of older Chinese BITs require investors to also exhaust judicial remedies. According to UNTAD’s IIA Mapping Project, only 6 out of 112 mapped Chinese IIAs contain a local (judicial) remedies first clause, all of which were signed in the 1980s and 1990s.

See also: Sauvant and Nolan (2015), p. 915.

See also: Bath (2018), p. 68.

ASEAN-China Investment Agreement (2009) Article 14; China-Canada BIT (2012) Article 20 and Annex D para. 34; China-Australia FTA (2015) Article 9 para. 12.

See for a discussion of those issues, including their historic context, and a summary of failed legal initiatives by developing countries: Sornarajah (2010), pp. 144 et seqq.

See Sect. 4.​2.​1.​2.

OECD Guidelines for Multinational Enterprises (2008). http://​mneguidelines.​oecd.​org/​guidelines/​.

The Ten Principles of the UN Global Compact. https://​www.​unglobalcompact.​org/​what-is-gc/​mission/​principles.

UNCTAD’s IIA Mapping project counts 30 out of 2775 mapped treaties that contain any mentioning in the text (aside from preamble) of corporate social responsibility, all of which were concluded after the turn of the century and most of them after 2010. The EU and United States were among the first to include such provisions in their investment and trade agreements, see: Peels et al. (2016), p. 9.

Model CFIA (2015) Article 14.

Model CFIA (2015) Article 14 para. 2.

Model CFIA (2015) Article 24 para. 3. It has to be noted that not all CFIAs so far concluded by Brazil provide for such an exception. Still, as corporate social responsibility is not legally binding, State-State dispute settlement would not make any sense. For an overview of actual treaty practice in that regard, see: Ratton Sanchez Badin and Morosini (2018), p. 234.

Ratton Sanchez Badin and Morosini (2018), p. 231.

As noted the Model CFIA does not establish legal corporate social responsibility obligations. Concluded CFIAs followed that approach. See for an overview of corporate social responsibility provisions in Brazilian treaty practice: Bernasconi-Osterwalder and Dietrich Brauch (2015), p. 15.

See on this possibility correctly: Ratton Sanchez Badin and Morosini (2018), pp. 219 and 231.

Trubek and Rolland (2018), pp. 419 et seq.

Model CFIA (2015) Article 11 (i) (Highlighting is my own).

Model CFIA (2015) Article 11 (ii)–(iii).

Indian Model BIT (2016) Article 11.

Indian Model BIT (2016) Article 12.

Urbaser S.A. et al. v The Argentine Republic, ICSID Case No. ARB/07/26, Award (8 December 2016), paras. 1110 et seqq.

Indian Model BIT (2016) Article 13 para. 3.

Trubek and Rolland (2018), p. 40.

Trubek and Rolland (2018), p. 40.

Trubek and Rolland (2018), p. 40.

See: Notification of the Ministry of Commerce and the Ministry of Environmental Protection on Issuing the Guidelines for Environmental Protection in Foreign Investment and Cooperation (18 February 2013). available at: http://​english.​mofcom.​gov.​cn/​article/​policyrelease/​bbb/​201303/​20130300043226.​shtml.​; China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters Guidelines for Social Responsibility in Outbound Mining Investments (10 February 2015). http://​www.​cccmc.​org.​cn/​docs/​2017-08/​2017080414170935​5235.​pdf. Accessed 12 Sept 2020.

SADC Model BIT (2012), Preamble; Protection of Investment Act (2015) Preamble (“Securing a balance of rights and obligations of investors to increase investment in the Republic.”).

SADC Model BIT (2012), Part 3 (Articles 10–22).

SADC Model BIT (2012), Article 10 para. 3 and commentary thereto.

This has been pointed out in the commentary, see: SADC Model BIT (2012) Commentary, p. 32.

SADC Model BIT (2012), Commentary Article 13 para. 2.

SADC Model BIT (2012), Commentary Article 13 para. 3.

SADC Model BIT (2012), Article 13 para. 4.

See e.g. U.S. Model BIT (2012) Article 12 (Investment and Environment) and Article 13 (Investment and Labour).

SADC Model BIT (2012), Article 15 para. 2–3.

SADC Model BIT (2012), Commentary, p. 37.

SADC Model BIT (2012), Article 19 para. 1.

SADC Model BIT (2012), Article 17 para. 2.

China-Uzbekistan BIT (2011) Preamble; China-Korea FTA (2015) Preamble.

SADC Model BIT (2012), Preamble.

Protection of Investment Act (2015) Preamble.

See on the Salini Test and its criteria above Sect. 5.3.1.2.

SADC Model BIT (2012), Article 10 para. 4.

SADC Model BIT (2012), Article 17 para. 2.

SADC Model BIT (2012), Article 22 para. 1.

See NAFTA Investment Chapter (1992) Article 1114 para. 2.

U.S. Model BIT (2012) Article 12 para. 2.

The IIA Mapping project counts 70 out of 2575 mapped treaties that include such a clause, almost all of which were concluded in the twenty-first century.

U.S. Model BIT (2012) Article 12 para. 2.

As noted above State-State dispute settlement as a whole has scarcely been used to bring cases related to foreign investments, see: Bernasconi-Osterwalder (2014), p. 1.

SADC Model BIT (2012), Commentary, p. 41.

SADC Model BIT (2012), Commentary, p. 41.

Model CFIA (2015) Article 24 para. 3.

Model CFIA (2015) Article 15 para. 1.

Indian Model BIT (2016) Preamble.

See e.g. China-Japan-Republic of Korea Trilateral Investment Agreement (2012) Article 7; China-Republic of Korea FTA (2015) Article 12.7; Mainland China-Hong Kong CEPA investment agreement (2017) Article 25 (limited to environmental standards).

According to UNCTAD’s IIA Mapping Project, 212 out of 2572 mapped treaties contain a prohibition of performance requirements.

According to UNCTAD’s IIA Mapping Project, among 48 mapped U.S. IIAs 43 contain a prohibition of certain performance requirements.

U.S. Model BIT (2012) Article 8.

See on the development potential of using performance requirements, e.g. Nikièma (2014), p. 16 (“Starting from the premise that well-formulated and applied PRs can be effective tools to maximize the economic, environmental and social benefits of foreign investment, it is consequently important for states, particularly developing countries, to retain the possibility of using them when the circumstances warrant so doing.”).

SADC Model BIT (2012), Article 21 para. 2 b).

SADC Model BIT (2012), Commentary, p. 41.

China-Republic of Korea BIT (2007) Article 2 para.3.

China-Republic of Korea FTA (2015) Article 12.7 para. 1–2.

Article 7 para. 1–2.

According to UNCTAD’s Mapping Project, only three Chinese IIAs contain prohibitions of performance requirements.

China-Hong Kong CEPA Investment Agreement (2017) Article 7.

China-Hong Kong CEPA Investment Agreement (2017) Article 7 para. 1.

China-Hong Kong CEPA Investment Agreement (2017) Article 3 i)–vi).

According to UNCTAD’s Mapping Project, 2560 out of 2572 mapped treaties contain a transfer of funds provision.

Notably a number of cases brought against Argentina in the wake of its financial crisis in the early 2000s were based on the argument that Argentina’s emergency measures violated free transfer clauses, see e.g.: BP America Production Company and others v. Argentine Republic, ICSID Case No. ARB/04/8, Decision on Preliminary Objections (27 July 2006), paras. 21 and 31; see less explicitly also: Gas Natural v. Argentina, ICSID Case No. ARB/03/10, Decision of the Tribunal on Preliminary Question on Jurisdiction (17 June 2005), paras. 13–15.

According to UNCTAD’s Mapping Project, of 173 signed treaties between 2010–2018, 106 contained balance of payment exceptions.

According to UNCTAD’s Mapping Project, only 351 out of 2572 mapped treaties contain a balance of payments exception.

Model CFIA (2015) Article 10 para. 4.

Model CFIA (2015) Article 10 para. 5.

Indian Model BIT (2016) Article 6.

SADC Model BIT (2012), Article 8 para. 4 a) (“Where, in the opinion of a State Party […]”).

SADC Model BIT (2012), Commentary, p. 29.

According to UNCTAD’s IIA Mapping Project, of 19 mapped IIAs signed by China between 2005 and 2018 only 8 contain balance of payment exceptions.

China-Hong Kong CEPA Investment Agreement (2017) Article 14.

China-Hong Kong CEPA Investment Agreement (2017) Article 14 para. 5.

Hees and Choer Moraes (2020).

See Model CFIA (2015) Part III and IV.

Model CFIA (2015) Article 17 (Joint Committee) and Article 18 (Focal Points or Ombudsmen).

It has to be noted that the idea to install “Ombudsmen” to support investors is not originally a Brazilian idea but was inspired by the Korean Investment Act, see: Korean Foreign Investment Promotion Act 1998, as amended by Act No. 9374 (30th January 2009), Article 15 para. 2; see also: Ratton Sanchez Badin and Morosini (2018), p. 226 who also note some differences.

SADC Model BIT (2012), Article 23.

UNCTAD’s IIA Mapping project lists 366 treaties that contain at least a brief reference (outside the preamble) to specific promotion activities in the context of the agreement.

Model CFIA (2015) Article 17 para. 4.

Model CFIA (2015) Article 18 para. 4 e).

Model CFIA (2015) Article 25.