Global reform of investor-state arbitration: A tentative roadmap of China's emergent equilibrium

• Main Author: MCLAUGHLIN, Mark
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2018
• Subjects: State and Local Government Law; Taxation-State and Local
• Online Access: https://ink.library.smu.edu.sg/sol_research/4011; https://ink.library.smu.edu.sg/context/sol_research/article/5969/viewcontent/McLaughlinChinaISA.pdf
• Institution: Singapore Management University

Investor–State arbitration is in a state of flux. In recent years, doubts about its adequacy have become apparent: questions of coherence, consistency, legitimacy, and utility have rendered fragile the central place of investor–State arbitration in global foreign direct investment (FDI) governance. Three threads of reform have been advanced as a corrective to these deficiencies, encompassing incremental reform, institutional reform, and fundamental reform. China is perhaps the most influential nation not to have declared a preference for one future or another. For over a decade, the Chinese approach to investor–State arbitration has been in a state of disequilibrium: bilateral investment treaties have routinely made provision for investor–State arbitration, and yet these provisions have lain dormant. Though still in its infancy, recent developments in China-related arbitrations suggest a new willingness to utilize these provisions, setting the course for a convergence of Chinese law and practice. In the context of substantial FDI inflows, growing FDI outflows, and an extensive web of international investment agreements, China has the potential to assume a leading role in the development of dispute-settlement mechanisms around the globe. This article considers whether China’s interests are best served by the promotion of investor–State arbitration and whether this approach is likely to involve incremental reform, institutional reform or fundamental reform.