CYIL vol. 9 (2018)

ANRAN ZHANG CYIL 9 ȍ2018Ȏ Although both the Czech Republic and the Slovak Republic adopted this 1991 treaty, the 1991 BIT is not an actual BIT that the Czech Republic itself negotiated and approved. About 15 years later, in 2005, the BIT between the Czech Republic and China was signed, which came into force on 1 September 2006, and for the first time, the two countries made their own agreements on the promotion and protection of investments. 31 Both these BITs involved fair treatment provisions, for instance, the National Treatment provisions and the Most-Favoured-Nation treatment provisions. 32 Compared to the 1991 BIT, the 2005 BIT applies a similar structure but includes more specific content. For instance, more specific definitions of “investment” and “investor” were applied in the 2005 BIT. The 2005 BIT added that the change in the form in which assets were invested did not change the character of investments. 33 In particular, with regard to the settlement of investor-state disputes, the 1991 BIT only allowed the investment disputes to be settled in either the competent court of the contracting party accepting the investment or by an international ad hoc arbitral tribunal established under the UNCITRAL Arbitration Rules. The 2005 BIT provided an additional choice for the investors, and allowed them to submit the claims to the ICSID. 34 From a practical perspective, even though both countries gained no experience on the basis of the 2005 BIT, these two states had their similar experience under the ICSID Convention. The case database of the ICSID indicates that the Czech Republic has been brought in front of the ICSID tribunals in three cases, 35 while nationals of the Czech Republic have submitted their claims against other countries in four cases. 36 Similarly, China has also been a respondent in three ICSID arbitration cases, 37 while nationals of China, including investors from mainland China, Hong Kong and Macau, have been claimants in six cases. 38 Apart from the ICSID proceedings, both countries also get involved in the investment arbitration under the UNCITRAL rules. 39 This exclusive overview of these investor-state cases indicates that these two counties take an active part in the investor-state dispute settlement mechanism. 33 Article 1 of the 2005 BIT. 34 Article 9 of the 2005 BIT. 35 Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5; A11YLtd v. Czech Republic, ICSID Case No. UNCT/15/1; Pawlowski AG and Project Sever s.r.o. v. Czech Republic, ARB/17/11. 36 Československa obchodní banka, a.s v. Slovak Republic, ICSID Case No. ARB/97/4; ENERGO-PRO a.s. v. Republic of Bulgaria, ICSID Case No. ARB/15/19; ČEZ, a.s. v. Republic of Bulgaria, ICSID Case No. ARB/16/24; Pawlowski AG and Project Sever s.r.o. v. Czech Republic, ARB/17/11. In the Pawlowski AG case, one of the claimants, Project Sever s.r.o is a national of the Czech Republic. 37 Ekran Berhad v. People’s Republic of China, ICSID Case. No.ARB/11/15; Ansung Housing Co. Ltd v. People’s Republic of China, ICSID Case No.14/25; Hela Schwarz GmbH v. People’s Republic of China, ICSID Case No. ARB/17/19. 38 Tza Yap Shum v. Republic of Peru. ICSID Case No.ARB/07/6; Standard Chartered Bank (Hong Kong) Limited v. Tanzanian Electric Supply Company Limited, ICSID Case No. ARB/10/20; Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium, ICSID Case No. ARB/12/29; Beijing Urban Construction Group Co.Ltd v. Republic of Yemen, ICSID Case No. ARB.14/30; Standard Chartered Bank (Hong Kong) Limited v. United Republic of Tanzania, ICSID Case No. ARB/15/42; Sanum Invetments Limited v. Lao People’s Domestic Republic, ICSID case No. ADHOC/17/1. 39 For instance, the Saluka Investments B.V. v. Czech Republic; China Heilongjiang International Economic & Technical Cooperative Corp., Beijing Shougang Mining Investment Company Ltd., and Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v. Mongolia. 31 The 2005 Czech-China BIT. 32 Article 3 of the 1991 BIT and Article 3 of the 2005 BIT.

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