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Journal of International Economic Law Advance Access published online on May 22, 2009
Journal of International Economic Law, doi:10.1093/jiel/jgp020
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© Oxford University Press 2009, all rights reserved

China–US Bit Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications

Cai Congyan*

Correspondence: *Cai Congyan is a Dr and professor of international law, Xiamen University School of Law, P. R. China. Special appreciations should be extended to Prof. José E. Alvarez, Prof. Andrew Newcombe, Dr Monika Heymann and Dr Axel Berger for their valuable comments on my preliminary work. Any error, however, is my own. E-mail: caicongyan{at}xmu.edu.cn. This research is supported by the Ministry of Education, P. R. China (Grant No. 06JC820013) and Ministry of Justice, P. R. China (Grant No.06SFB3028).


  Abstract

China and the United States declared to launch the Bilateral Investment Treaty (BIT) negotiations at the conclusion of the fourth China–US Strategic Economic Dialogue (SED) on June 18, 2008. This BIT negotiation revives a failed BIT program of 20 years ago. It can be expected that China–US BIT negotiations will be concluded successfully because China's approach to investment treaties has recently been Americanized to large degree and because China–US SED can also provide institutional support. Nevertheless, China should seriously evaluate what it will benefit from and will lose from this BIT program from multiple angles, not limited to investment regime only. What is more important, at the historical moment when structural deficiencies have made the investment treaty regime at a crossroad, China and the United States as great powers have a mandate to enhance to reconstruct and make it more balanced, responsive, and accountable through their BIT program. For this purpose, three fundamental dimensions of Special and Differentiated (S&D) treatment, conduct of investors, and sustainable development should be deliberately addressed.


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