Issues

This article introduces and examines Chinese arbitration institutions’ recent movements to expand non-ICSID investment arbitration services, which could potentially contravene existing relevant Chinese laws and judicial practice, and it explores the prospects for non-ICSID investment arbitration in China. The article first compares ICSID and non-ICSID investment arbitration to determine the differences between them and their respective selling points for stakeholders in investment disputes. Next, the article examines the diverse mechanisms involved and highlights the different rules that govern non-ICSID arbitration, including the rules established by Chinese arbitration institutions in recent years. The article then further analyzes the obstacles in existing Chinese legislation and judicial practice that have impeded the use of non-ICSID investment arbitration in China. Finally, after briefly introducing proposals to remove these obstacles, the article examines the future prospects for Chinese non-ICSID investment arbitration.

State-owned enterprises (SOEs) are pervasive worldwide nowadays, particularly in the emerging countries. SOEs are currently more active in global markets than decades ago, engaging in cross-border trade and investment. Concerns, hence, have arisen, that there are negative effects on global markets associated with SOEs usually receiving various advantages, particularly, such as financial advantages. Meanwhile, SOEs often act as the givers of financial advantages. Current WTO rules are not sufficient to address the problem of SOEs as givers of financial advantages, and the problem of SOEs as recipients of financial advantages. This article tries to push the current WTO rules to their limits, and to find potential approaches to address those problems. The efforts, however, failed to some degree. Hence, the article makes recommendations to improve them by three types of proposals, i.e., trade remedies proposals, trade rules proposals, and a competition rules proposal within the framework of the WTO. In the end, the author also engages with other academic articles on SOEs, and where they support the author’s position or differ from it. Explanations are also given on how proposals made by the author are similar to or differ from what was proposed in the Trans-Pacific Partnership (TPP) and why the author’s approach is better.