Download 7_Boie, B. - NCCR Trade Regulation

(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)
Chinese–European Investment Regulation:
Progress in a Fragmented Area of Law
The dynamic investment exchange involving Europe and China raises many different, important questions:
?
What are the issues for
Switzerland and Europe if
Chinese investors increase their
presence on the European market?
?
RESEARCH
Why do Swiss
banks complain about
limited business opportunities
on the
Chinese market?
?
In which forum are
international rules for
investment negotiated?
Why are investors‘
intellectual property
rights in China under threat?
QUESTIONS
?
Why do sweatshops
and sub-standard
production remain
a problem in China?
?
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:
First Dimension of Fragmentation: Proliferation
1
of Bilateral Investment
Treaties (BITs)
2
Second Dimension of Fragmentation:
Investment Law v. other Branches of
International Economic Law
Worldwide, a non-transparent net of nearly
3000 bilateral investment treaties regulates
(mostly) international investment protection.
While trade matters are covered by WTO
rules, investment rules are scattered over
various agreements and stakeholders.
In the EU-Chinese context, 25 such treaties
co-exist, without any coordination or
coherence.
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.
ANSWERS
1
Third Dimension of Fragmentation:
Investment Law v. other Law,
such as Human Rights or Environmental Law
3
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.
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:
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.
2
My research finds that the inclusion of
clauses on non-economic values in EUChinese BITs is a difficult aspiration. It says
why, and frames the emerging questions.
3
copyright: Bertram Boie
[email protected]
The Fragmentation of International Investment Law in three Dimensions
3rd Dimension: International Law
…
2nd Dimension: International Economic Law
Regional Trade Agreements
Free Trade Agreements, Partnership and Cooperation Agreements, …
„BITs +“ ?
„WTO +“
1st Dimension: Investment Treaties
GATS
„BITs Universe“
?
Human
Rights
Law
• atomized into 2500 agreements
• unique treatment and protection standards
WTO Law
TRIMS
• unique dispute settlement system
(~ 320 investor-state cases)
?
• regional elements (NAFTA)
Environmental
Law
• subject-specific elements (Energy Charter)
TRIPS
• topic-specific elements (insurance)
?
?
…
…
General Public International Law
copyright: Bertram Boie
[email protected]