I've gotten to know some of the folks at Brussels think tank ECIPE over the past year, and I always enjoy their work. Here's a new piece from research associate Michal Krol entitled "The Case for an EU-China investment agreement": http://www.ecipe.org/media/publication_pdfs/ECIPE_Bulletin_6_FINALPDF.pdf An excerpt:
all the BITs that China has with EU countries are not of top standard. Provisions in these BITs vary and vague language makes them susceptible to different interpretation. Both sides need to get agreements with improved legal clarity and precision – binding agreements rather than rehearsals of ambiguous and broad legal concepts. The latter invites confusion and unpredictability – and prompts firms to test the limits of an agreement through investor-state litigation, adding yet more tensions.
It won't surprise anyone to learn that I agree with all of this in a general sense. I would love to see future investment negotiations look closely at possible legal obligations, with the aim of improving certainty and clarity, and removing unpredictability. I don't know exactly where that would take us, but hopefully a better place than where we are now.
I also wanted to mention one other issue in the paper. He talks about the difference between the goals of "market access" and "investment protection." By this, I take it he means rules that enable investments to be made in the first place, on the one hand, and rules that protect existing investments, on the other. But I wonder if the investment debate is better served by deemphasizing this distinction, and focusing more on the general principle of non-discrimination: Governments can't discriminate against foreign investors/investments, regardless of whether the investment has been made yet. (Part of my concern here is the uncertainty over the term "market access").