As its title aptly suggests, this eleven-chapter monograph, published in 2021, seeks to understand the motivations behind the design and evolution of China's Bilateral Investment Treaties (BITs). Most notably, its author, Shen Wei, questions the rationale often given for China's BIT policy, namely that China's BITs have changed in accordance with China's transformation from an inward foreign investor to an inward and outward foreign investor. Through a comparative study of China's BITS with those of its negotiating partners, the author concludes that the changes over time in the drafting of China's BITs do not reflect the aforementioned transformation, but rather have largely been influenced by China's negotiating partners, particularly in the case of developed-country partners.
This cross-disciplinary analysis, which delves into investment treaty law and the political economy of China's BIT policy, succeeds in covering a lot of ground. It opens with a survey of China's domestic investment law over the past forty years, and subsequent chapters address key provisions of its BITs, including substantive provisions, expropriation, non-discrimination, parallel proceedings and transitional clauses. The book also has a comprehensive chapter on investor–state arbitration under China's BITs, noting that although China is the second largest global signatory to international investment agreements, it has, surprisingly, been involved in very few disputes. The author analyses the major cases, focusing on the issues raised, the tribunals’ interpretations and the implications of the rulings.
Shen Wei opens each chapter by setting the stage thematically for the detailed discussion that follows, presenting the topic in the Chinese BIT context and/or the broader BIT framework. For instance, to set the stage for the discussion of China's policy on state regulation in its BITs, he refers to Jose E. Alvarez's seminal article on “the return of the state,” then provides a comprehensive analysis of the transition in international investment treaty law from investor protection to protection of the state, including growing global opposition to Investor State Dispute Settlement (ISDS), and new provisions on states’ right to regulate in BITs. He then assesses China's individual BITs on a continuum from more investor protection to more protection for states’ right to regulate. I particularly appreciated the many illuminating figures and tables compiled by the author to summarize his analysis and findings. They add considerably to the book's value.
It would be edifying to continue the author's analysis in light of recent events. Since the book was completed, much has changed in the international investment treaty context, as well as in China's foreign relations. For example, the COVID-19 pandemic has reinforced the necessity of strengthening states’ right to regulate. New regional agreements to which China is a signatory, such as the Regional Comprehensive Economic Partnership (RCEP) have come into force. Shen Wei analyses the still unratified EU–China Comprehensive Agreement on Investment (CAI), but the more recently concluded European–UK Trade and Cooperation Agreement (TCA) contains an investment chapter which differs markedly from the CAI and would be a useful basis for the author's comparative analysis. Apropos China's foreign relations, the EU has evinced significantly more hostility to China over the past few years with regard to Chinese trade and investment. The ratification status of the CAI, which has stalled since the European Parliament froze the deal in May 2021, reflects this. Given the EU's stance on China's human rights policies, and China's position on Russia's invasion into Ukraine, it is unclear whether the CAI will ever come into force.
This book is highly recommended, providing enough detail, comparative analysis, and wide-ranging coverage to be useful for practitioners negotiating BITs or free-trade agreement chapters with China, as well as for law, international relations and Asian studies scholars and students focusing on China's BITs. Moreover, individual chapters are readily comprehensible as stand-alone studies.
