CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CHALLENGES OF BILATERAL INVESTMENT BETWEEN THE CZECH REPUBLIC AND CHINA This active participation could make investors from other countries have an expectation of protection and allow investment disputes to proceed smoothly. Moreover, the majority of these cases were entirely new and were submitted in recent years, which indicates that both countries are open to investor-state arbitration and are willing to engage in the ISDS mechanism. 3.2 Key Concerns regarding the Czech Republic-China BFI Using the available investor-state arbitration cases in relation to both countries, this paper summarises the legal issues with significant importance in these cases in order to provide reflections on the Czech Republic-China BFI. Although there is no investment arbitration based on the Czech Republic-China BIT, each country could learn from the ISDS practices of the other country. 3.2.1 Jurisdictional Provisions of Successive BITs The first key concern relates to the temporal application of jurisdictional provisions of successive BITs. In the Ping An v. Belgium case, the arbitral tribunal superficially drew attention to this issue. 40 Being the first ICSID case brought by Chinese mainland investors, the Ping An case plays a very important role. In this case, the Tribunal analyses whether the BIT between China and Belgium, which entered into force on 1 December 2009, covers disputes that arose before this date but not under the arbitral process. China and Belgium signed two successive BITs: the first one entered into force on 5 October 1986, and the second one in 2009. Article 10 of the 2009 Belgium-China BIT claims that, “1. This Agreement substitutes and replaces the Agreement between the Government of the ’People’s Republic of China and the Belgium-Luxembourg Economic Union on the Reciprocal Promotion and Protection of Investments, signed on 4th June, 1984 in Brussels. 2. The present Agreement shall apply to all investments made by investors of either Contracting Party in the territory of the other Contracting Party, whether made before or after the entry into force of this Agreement, but shall not apply to any dispute or any claim concerning an investment which was already under judicial or arbitral process before its entry into force. Such disputes and claims shall continue to be settled according to the provisions of the Agreement of 1984 mentioned in paragraph 1 of this Article.” The 1989 BIT only allowed investors to submit disputes in relation to the amounts of compensation for expropriation. 41 But the 2009 BIT allows any dispute between an investor of one Contracting Party and the other Contracting Party to be submitted to international arbitration. 42 Accordingly, the Claimants raised their claims on the basis of the breaches of the 1986 BIT, but relied on the jurisdiction provision of the 2009 BIT. As is in the present case, there is no dispute that the investment was made, the alleged breaches occurred, and the

40 Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company, Limited v. The Government of Belgium, ICSID Case No. ARB/12/29.

41 Article 10 of the 1986 BIT. 42 Article 8 of the 2009 BIT.

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