CYIL vol. 9 (2018)

ANRAN ZHANG CYIL 9 ȍ2018Ȏ dispute arose all before the entry into force of the 2009 BIT. This dispute centres on to how to interpret Article 10 and Article 8 of the 2009 BIT. Belgium objected to jurisdiction and argued that Article 8 of the 2009 BIT was only limited to disputes arising after the treaty entered into force from a literal understanding. 43 Ping An argued that the 2009 BIT was applicable to investments made before it came into effect, with the exclusion of those disputes that were already in the arbitral process before it came into force. 44 The tribunal was aware that, firstly, both parties agreed that the disputes arose before the entry into force of the 2009 BIT; secondly, the 2009 BIT did not express to settle the pre-2009 BIT notified disputes which arose before 1 December 2009 which had been notified but not under the arbitral process in accordance with the 1986 BIT. 45 In respect to the plain understanding of Article 8, Article 10 and the preamble of the 2009 BIT, the tribunal held that these provisions did not support that the pre-2009 BIT notified disputes fell within the scope of the 2009 BIT. In particular, the tribunal highlighted that inference with pre-2009 BIT disputes would extend the range of the disputes referred to arbitration: from the amount of compensation related disputes to any legal disputes. 46 Therefore, the Tribunal dismissed the claims of the Claimants. This paper does not criticize the decision of the arbitral tribunal, but rather draws comparative attention to the BITs between the Czech Republic and China. Article 13 of the 2005 Czech Republic-China BIT indicates that from the date of entry into force, the 2005 BIT replaces the 1991 BIT. Article 11 of the 2005 BIT states, The provisions of this Agreement shall apply to investments made after its entry into force by investors of or[e] Contracting Party in the territory of the other Contracting Party, aid also to the investments existing in accordance with the laws of the Contracting Parties on the date this Agreement comes into force. However, the provisions of this Agreement shall not apply to claims arising out of events which occurred, or to claims which had been settled, prior to its entry into force. Compared with the 2009 Belgium-China BIT, this provision excludes both the claims arising from events which had occurred and the claims which had been settled before the BIT came into force. Under this provision, the pre-notified 2005 BIT disputes are also exclusively under the jurisdiction of the 2005 BITs. Furthermore, China and the EU are negotiating the EU-China BIT, which intends to replace the existing Chinese BITs with EU MS, including the 2005 BIT with the Czech Republic. Consequently, the question of how to measure the jurisdiction provision of the EU-China BIT brings interesting reflections. 3.2.2 SOEs in BFI The second legal concern that this paper intends to address is the legal status of SOEs in the BFI between the Czech Republic and China. SOEs play significant roles in BFI. More importantly, both countries gained similar practical experience about their respective SOEs in the ISDS. On 31 May 2017, the ICSID Tribunal issued a jurisdictional decision which 43 Award para 138-140.

44 Award para 132. 45 Award para 205. 46 Award para 223-231.

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