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Chinese–European Investment Regulation: Progress in a Fragmented Area of Law
copyright: Bertram Boie [email protected]
Why do Swiss banks complain about
limited business opportunities on the
Chinese market?
Why are investors‘ intellectual property
rights in China under threat?
In which forum are international rules for
investment negotiated?
What are the issues for Switzerland and Europe if
Chinese investors increase their presence on the European market?
Why do sweatshops and sub-standard production remain
a problem in China?
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The dynamic investment exchange involving Europe and China raises many different, important questions:
Which rules are applicable to these questions? What are the main shortcomings of and possible solutions offered by these rules? My research approach breaks down (some of) these questions into three main dimensions of fragmentation of law:
QUESTIONS
RESEARCH
ANSWERS Overall, the dynamic investment exchange between Europe and China is not catered for by an appropriate legal framework. International rules on investment are fragmented, scattered and narrowly focused on investment protection. In more detail:
First Dimension of Fragmentation: Proliferation of Bilateral Investment
Treaties (BITs)
Worldwide, a non-transparent net of nearly 3000 bilateral investment treaties regulates (mostly) international investment protection.
In the EU-Chinese context, 25 such treaties co-exist, without any coordination or coherence.
Second Dimension of Fragmentation: Investment Law v. other Branches of
International Economic Law
While trade matters are covered by WTO rules, investment rules are scattered over various agreements and stakeholders.
In the EU-Chinese context, an analysis of the coverage of intellectual property rules by trade rules (WTO/TRIPS) and investment rules (BITs) gives evidence of overlaps and inconsistencies.
Third Dimension of Fragmentation: Investment Law v. other Law,
such as Human Rights or Environmental Law
International investment treaties today address mostly investment protection and do not feature exceptions to these protection rules for non-economic societal values (environment, social issues, workers‘ rights).
For the EU-Chinese context, this means that investors are bound only by national laws, and their often lax enforcement.
(My research is mostly about EU-China relations, but since there are no major differences in investment policies between EU countries and Switzerland, my research applies to the EU and Switzerland alike)
European–Chinese BITs need to be better coordinated and streamlined. My research gives an indication as to how.
On the matter of IP – crucial for the EU-Chinese context – the borderlines between TRIPS and BITs need to be better defined. My research offers one possible proposition as to how this could be done.
My research finds that the inclusion of clauses on non-economic values in EU-Chinese BITs is a difficult aspiration. It says why, and frames the emerging questions.
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General Public International Law
…
Human Rights Law
Environ-mental Law
„WTO +“ „BITs +“ ?
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1st Dimension: Investment Treaties
WTO Law
GATS
TRIMS
TRIPS
Regional Trade Agreements
3rd Dimension: International Law
2nd Dimension: International Economic Law
Free Trade Agreements, Partnership and Cooperation Agreements, …
„BITs Universe“
• atomized into 2500 agreements
• unique treatment and protection standards
• unique dispute settlement system
(~ 320 investor-state cases)
• regional elements (NAFTA)
• subject-specific elements (Energy Charter)
• topic-specific elements (insurance)
The Fragmentation of International Investment Law in three Dimensions
copyright: Bertram Boie [email protected]
