New from Oxford University Press: China’s International Investment Strategy Bilateral, Regional, and Global Law and Policy

China’s International Investment Strategy
Bilateral, Regional, and Global Law and Policy
International Economic Law Series

Edited by Julien Chaisse

9780198827450
This collection, compiled by award-winning scholar Professor Julien Chaisse, explores the three distinct tracks of China’s investment policy and strategy: bilateral agreements including those with the US and the EU; regional agreements including the Free Trade Area of the Asia Pacific; and global initiatives, spear-headed by China’s presidency of the G20 and its ‘Belt and Road initiative’. The book’s overarching topic is whether these three tracks compete with each other, or whether they complement one another – a question of profound importance for the country’s political and economic future and world investment governance.

Features

• Combines legal, economic and international relations perspectives, to provide a comprehensive analysis of the subject
• Brings together a group of experts in the field, exploring the most recent issues in international trade law
• A variety of illustrations support and elucidate the contributors’ arguments.

Table of Contents
Forward, Zhao Hong
Introduction: China’s International Investment Law and Policy Regime- Identifying the Three Tracks, Julien Chaisse
1: China’s Inward Investment: Approach And Impact, Michael J. Enright
2: China’s Outward Investment: Chinese Enterprise Globalization’s Characteristics, Trends, and Challenges, Hui Yao Wang and Lu Miao
3: Impact of Tax Factors on Chinese FDIs, Na Li
4: SOE Investments and The National Security Protection: Implications For China, Lu Wang
5: Nationwide Regulatory Reform Starting From China’s Free Trade Zones: The Case Of Negative List Of Non-Conforming Measures, Jie (Jeanne) Huang
6: Addressing Sustainable Development Concerns through IIAs: A Preliminary Assessment of Chinese IIAs, Manjiao Chi
7: Lessons Learned from The Canada-China FIPA For The US-China BIT And Beyond: Chinese Whispers Or Chinese Checkers?, Kyle Dylan Dickson-Smith
8: Innovation as a Catalyst in the China-Israel Investment Relationship:The China-Israel BIT (2009) and the Prospective FTA, Hadas Peled and Marcia Don Harpaz
9: Drivers and Issues of China-EU Negotiations for A Comprehensive Agreement on Investment, Flavia Marisi and Qian Wang
10: Issues on SOEs in BITs: The (Complex) Case of the Sino-US BIT negotiations
11: Towards A Fourth Generation of Chinese Treaty Practice: Substantive Changes, Balancing Mechanisms, And Selective Adaption, Matthew Levine
12: Substantive Provisions of East Asian Trilateral Investment Agreement and Their Implications, Won-Mog Choi
13: The RCEP Investment Rules and China: Learning From the Malleability of Chinese FTAs, Heng Wang
14: Towards an Asia-Pacific Regional Investment Regime: The Potential Influence of Australia and New Zealand as a Collective Middle Power, Amokura Kawharu and Luke Nottage
15: A New Era in Cross-Strait Relations? A Post-Sovereign Enquiry in Taiwan’s Investment Treaty System, Horia Ciurtin
16: China Moves The G20 Toward An International Investment Framework And Investment Facilitation, Karl P. Sauvant
17: G20 Guiding Principles for Global Investment Policy-Making: A Stepping Stone for Multilateral Rules on Investment, Anna Joubin-Bret and Cristian Rodriguez Chiffelle
18: Beware of Chinese Bearing Gifts: Why China’s Direct Investment Poses Political Challenges in Europe and the United States, Sophie Meunier
19: The Political Economy of Chinese Outward Foreign Direct Investment in “One-Belt, One-Road (OBOR)” Countries, Ka Zeng
20: China’s Role And Interest In Central Asia: China-Pakistan Economic Corridor, Manzoor Ahmad
21: The International Fraud & Corruption Sanctioning System: The Case of Chinese SOEs, Susan Finder
22: He Who Makes the Rules Owns the Gold: The Potential Ramifications of The New International Law Architects, Joel Slawotsky
23: Investment Treaty Arbitration in Asia: The China Factor, Matthew Hodgson and Adam Bryan
24: Investment Disputes Under China’s Bits: Jurisdiction with Chinese Characteristics?, Jane Willems
25: Protecting Chinese Investment Under the Investor-State Dispute Settlement Regime: A Review In Light Of Ping An V Belgium, Claire Wilson
26: Use Of Investor-State Against China’s Enforcement of The Anti-Monopoly Law: Belling The Panda?, Sungjin Kang
27: Implementing Investor-State Mediation in China’s Next Generation investment Treaties, Shu Shang

For more details, please visit the OUP dedicated page.

The End of West Takers in the UK? Anti-suit injunctions post-Brexit: The default ‘No-deal’ Scenario

David Ndolo, Coventry Law School, Coventry University

The UK parliament passed the European Union Withdrawal Act 2018 (“EUWA”) that gained royal accent on 26 June 2018. While the exit day is currently set for 29 March 2019, there is a proposed transition period until December 2020 in case a Brexit deal is agreed upon.

In any event, the default position is set under sections 1 and 2 of EUWA, that EU Law will no longer be a source of law in the United Kingdom after the exit day. This includes the decisions of the Court of Justice of the European Union (“CJEU”).

To avoid legal gaps and uncertainty, the EUWA 2018 copy pasted all EU law, including CJEU case law, into the domestic UK law. As a result, the first and second instance courts will remain bound by previous CJEU cases. The UK Supreme Court, however, under section 6(4) of the EUWA, has the power to depart from previous CJEU decisions in the same way it can depart from its own earlier case law.

In other words, the UK Supreme Court can depart from the West Tankers case removing the restriction on UK courts power to issue anti-suit injunctions to parties in EU national courts. As has been discussed here, the CJEU held in West Tankers [(C-185/07) EU:C:2009:69 (ECJ (Grand Chamber)] that the anti-suit injunctions of this nature run counter to the principle of mutual trust among the EU member states as required by the Brussels I Regulation (replaced by the Brussels Recast Regulation in 2015). As result, EU member state courts, including English courts, cannot issue an anti-suit injunction in favour of arbitration where a party starts foreign court proceedings in an EU state. Despite the controversy that the AG’s opinion raised in Gazprom OAO EU:C:2014:2414., the English courts re-affirmed that they still firmly apply the CJEU’s approach in West Takers in Nori Holdings Ltd v Bank Financial Corp [2018] EWHC 1343 (Comm).

The UK Supreme Court highly values its power to issue anti-suit injunctions in favour of arbitration. In fact, in Turner v Grovit [2001] UKHL 65, it formally referred to anti-suit injunctions as an ‘important valuable weapon’ (emphasis added) and sees it as giving London seat of arbitration an advantage over its competitors. The UK Supreme Court has also twice ruled in favour of court’s power to issue anti-suit injunction in West Tankers [2007] UKHL 4 and Turner v Grovit as not being contrary to principle of mutual trust under Brussels Regulation 1, albeit its decisions were overturned by the CJEU.

Moreover, despite the CJEU ruling in West Tankers, the English courts have continued to grant anti-suit injunctions in favour of arbitration proceeding directed to parties who stated foreign proceeding in non-EU national courts. In fact in 2013, in Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35,the UK courts further widen their power to grant anti-suit injunction in favour to restrain foreign proceedings brought in breach of an arbitration agreement, to cases where there is no existing or proposed arbitration.

Following this, it is likely that the UKSC is to overturn West Tankers after the exit day such that UK courts will regain the full power to issue anti-suit injunctions post-Brexit. However, if this were to happen, the adoption of the Brussels I Recast2015 into domestic UK law and the previous CJEU decisions in West Tankers and Turners v Grovit EU:C:2004:228 are indications that the English courts would need to reconsider its power to issue anti-suit injunctions especially those directed to parties EU national courts.

If the UK were to regain the power to issue anti-suit injunctions where the foreign court proceedings are commenced in a European court, this may give the London seat as a practical pro-arbitration advantage over its competitors within the EU. This is because it will give the parties guarantee where there is valid arbitration agreement, the English Court can compel the parties to comply with that voluntarily choice to settle via arbitration even where the proceedings are commenced in EU state court. Indeed, in a recent survey conducted by Queen Mary University the respondents indicated that they will continue to use English law after Brexit because of its support for arbitration and regain of such a remedy may further cement their decisions. (QMU & White Case, ‘International Arbitration Survey: The Evolution of International Arbitration’(2018) at 12 )

However, the corollary to such an approach is that there is also the risk that where an anti-suit injunction is granted to stop proceedings in EU State court, those courts might later refuse to recognise and enforce the arbitral award on the basis its being contrary to the EU member state’s public policy in reliance on the New York Convention, Article V(2)b. In addition to this, as West Tankers only applies to EU State courts, EU State courts would equally be free to grant anti-suit injunctions to restrain a party from pursuing a claim before the English courts. As a result, this approach can be seen by the parties as being too uncertain, restrictive and a disadvantage and thus they prefer an EU Seat where it is clear and well settled that EU state court cannot grant anti-suit injunction directed to a party in EU state court. In such a case it is likely that Paris as a seat of arbitration will most benefit. (QMU Survey 2018)

2019 Essay Competition for the European Investment Law and Arbitration Review

The Editorial Committee of the European Investment Law and Arbitration Review invites original, unpublished, high quality submissions for the Essay Competition 2019.

The Essay Competition is open to all students, junior scholars and junior practitioners from around the world. To be eligible for the prize, authors must:

  • be enrolled in a BCL, LLB, JD, LLM, DCL, or PhD program (or their local equivalents); or
  • have taken their most recent law degree within the last three years; or
  • have been admitted to the practice of law for no more than three years.

​Submissions for the Essay Competition 2019 must relate to one of the following topics:

  • The EU-Vietnam FTA
  • The EU-Japan FTA
  • The UNCITRAL negotiations regarding ISDS reform
  • The proposed investment court system (ICS) and the expected Opinion of the CJEU.
  • The Vattenfall decision regarding the Achmea judgment
  • The Chevron v. Ecuador decision
  • Brexit, EU law and investment treaty arbitration
  • State immunity and enforcement of awards within the EU

All submissions should be between 5.000 and 12.000 words, including footnotes. Co-authored submissions are permissible.

All submissions should be in English and must be in conformity with the Review’s house style. The Review’s house style is available here.

All submissions should be accompanied by documents, which prove that the eligibility criteria for the Essay Competition are met.

The deadline for submission is: 1 April 2019.

Submissions are to be emailed as an attached Word document to eilarev@efila.org, with the subject “Submission for EILAR Essay Competition 2019”.

​ Winners will be chosen by the Editorial Committee of the Review.

Prizes
The winning submission and the runner-up submission will be published in the Review.

In addition, the following prizes will be awarded:

First prize: EUR 500 worth of books sponsored by Brill / Nijhoff
Second prize: EUR 250 worth of books sponsored by Brill / Nijhoff
Third prize: EUR 150 cash sponsored by Norton Rose Fulbright, London

All winners will receive a complimentary pass to the 2020 EFILA Annual Conference.

Call for Papers for the 2019 Issue of the European Investment Law and Arbitration Review

The Editorial Committee of the European Investment Law and Arbitration Review invites original, unpublished scholarly submissions on recent developments in international investment law, with a focus on the theme ‘The EU as a policy driver of international investment law’.

Examples of topics that authors could consider include:

  • The EU-Vietnam FTA
  • The EU-Japan FTA
  • Brexit, EU law and investment treaty arbitration
  • State immunity and enforcement of awards within the EU
  • The UNCITRAL negotiations regarding ISDS reform
  • The proposed investment court system (ICS) and the expected Opinion of the CJEU.

We also invite case-notes and short articles on for example:

  • The Vattenfall decision regarding the Achmea judgment
  • The Chevron v. Ecuador decision

Submissions to the Review should fit within the following categories:

Long articles

Scholarly articles should provide an in-depth analysis of a topic and aim to comprehensively cover the relevant case-law and literature. The maximum length should be 20,000 words.

Short articles

  • Shorter articles should offer a succinct analysis of a topical issue together with original views intended to stimulate debate. The maximum length should be 8,000 words.

Case-notes

  • Case-notes should provide a concise analysis of a recent arbitration award or decision of a national court. Case-notes are to include a summary of the facts and main points of the decision as well as an analysis of the impact of the decision on investment law and arbitration. The maximum length should be 5,000 words.

Book reviews

  • Book reviews should offer a critical summary of the main aspects of the book. The maximum length should be 3,000 words

Submissions must be in English and in conformity with the Review’s house style. The Review’s house style is available here.

All submissions must be unpublished and original material. Co-authored submissions are permissible.

All submissions will be peer-reviewed.

The Editorial Committee reserves the right to accept, reject a submission or make publication conditional upon modifications, which have been suggested to the author.

​​Submissions are to be emailed as an attached Word document to eilarev@efila.org

The deadline for submission is: 1 April 2019.