The context of the liberalization of international investment treaties defense provisions set

Keywords: indirect expropriation, Investment liberalization, foreign Investment controls
Summary: The trend towards liberalization of international Investment treaties, some countries have accepted the jurisdiction of ICSID's comprehensive, broad definition of liberalization in terms of indirect collection, to challenge the jurisdiction of foreign countries. To this end, take exception to restrict the collection and other defensive provisions indirectly, to protect the country based on environmental and national security policy, the need for foreign capital to implement the necessary control measures since 1998, the contents of China's growing liberalization of Investment treaties to study in a BIT to take appropriate defensive measure to avoid inadvertent decentralization in Argentina similar to the lessons of the current urgent needs of China's BITs practice.

Since the 1980s, the international liberalization of Investment rules on the Development trend of showing the one hand, the capital importing country, especially in some developing countries to attract foreign Investment have to modify its domestic foreign Investment Law, abolition of restrictions on foreign access, improve foreign Investment protection standards on the other hand, the American BITs represented a high degree of liberalization of bilateral Investment treaties is beginning to flourish, its content gradually to other countries in bilateral Investment treaties, regional multilateral investment treaties to follow. a number of developing countries in order to solve the debt crisis or the need for attracting foreign investment in the BITs in the high standards of developed countries have made concessions or compromises, but some in practice, "accidentally decentralization, waves of Lawsuits." developed countries of the between investment treaty practice shows that the content of these investment liberalization treaties also derogatory national sovereignty of the suspects, as in the NAFTA regime, investment disputes are about 60% of investors from the United States brought on the Government of Canada or by the Government of Canada the U.S. government brought in some case also attracted wider attention in these countries. liberalization of investment treaties is undoubtedly a jurisdiction foreign to the host country restrictions, some of the host country must be carefully designed targeted defensive terms, liberalization and investment treaties in the balance between national sovereignty.

First, the liberalization of international investment treaties and host of measures under the jurisdiction of foreign conflict
According to a recent international investment treaty practice and relevant case, I believe, on the interpretation of certain provisions of investment treaties, there is ambiguity, some of the increasingly broad range of important concepts, conditions of investment disputes to international arbitration to gradually reduce the sovereignty of the host country, are all caused by the crisis direct, specific performance is as follows:
(An indirect levy on the identification of
Imposed on the scope of the developed countries that levy collection, including direct and indirect expropriation, the international investment treaties generally do not have to define the concept of indirect collection, but only descriptive definition that "indirect charge is a charge equivalent to the direct effects of measures "[1] found an indirect result in uncertainty on the charge .20 for the 1990 collection of documents and practices that developed countries continue to expand the tax extension, for example, OECD Multilateral Agreement on Investment (MAI negotiations in the history of ever had a report on its work will have the same effect with the imposed measures be interpreted as: the confiscation, forfeiture, interference, temporary acceptance, use and disposal of investments the way, interfere with, government (even if these measures did not affect the ownership of investment, forced sales, etc., although the MAI negotiations end in abortion, but this broad list of developed countries shows that expanding the scope of the intent of indirect collection [2] In addition, in the late 1990s took place under the system of NAFTA investors frequently abuse a broad definition of charge to challenge the sovereignty of the host country cases, such as the U.S. Metalaclad Company v. Mexico, the U.S. Ethyl Corporation v. Canada, Canada's Methanex Corporation v. United States, these cases show that the host country based on safeguarding the environment, public health, Economic adjustment measures are likely to constitute indirect expropriation, a challenge to the country of foreign jurisdiction, and all this was also the capital-exporting countries as developed countries - the United States are unintended.

(B investor - State arbitration mechanism
In the 20 1950s and 1960s occurred because of the host country a lot of expropriation, nationalization brought about by international investment disputes, the result is to solve disputes in international arbitration of international investment patterns emerged as a compromise between developed and developing countries, the representative for the in 1965 <<solve the country with his State civil Investment Disputes Convention>> The Convention grants the host of "case by case approval of consent" power, "local remedies first," right, "the host application of the Law" right "major security exception" right to ensure that the host country's sovereignty and control of foreign powers from erosion, but in recent years in the Development of international investment liberalization in the context of some developing countries have to give up the four "safety valve" to give foreign investors the right to appeal directly after a dispute has arisen The result is greatly increased number of developing countries, the respondent [3] and ICSID arbitration, there are still one-sided tendency to maintain private property rights, tend to award the host country to take responsibility and set the expense of the host country's Economic sovereignty. [4]
(Three for fair and equitable treatment to explain the controversy
In international investment treaties, most of the provisions are given to foreign investors and their investments fair and equitable treatment of content, but the treaty formulation of this treatment is not the same. BITs American model will be fair and equitable treatment and protection and security, not link below the requirements of international Law, making the treatment of a wide range, while the two countries are reluctant to use this contact the American approach to NAFTA BITs are followed, in the case of investment disputes, the tribunal also tend to made in the treatment of a broad interpretation.

If the company has caused widespread concern Matalclad v. Mexico case, the federal government, Matalclad company made the Mexican federal government's hazardous waste facilities permit the Development of the project, but Mexico Guadalcaza municipal authorities announced that the project site to protect rare cactus is designed " eco-regions ", refused to issue building permits and prevent Matalclad company. the arbitral tribunal held that, as investors try to comply with the requirements of the Mexican federal government on hazardous waste disposal facility site legal process, failed to provide investors with transparent and predictable architecture, the Mexican government in violation of section 1105 (minimum standard of treatment requirement is worth noting that, according to the provisions of section 1105 A State pArty does not exist explicitly to provide investors with transparency obligations, customary international Law nor the transparency of the host country obligations required [5] Therefore, the case tribunal's decision caused widespread controversy, widely regarded as free to the host country to impose transparency obligations of investment law, and as a minimum treatment standards, increased investment in the host country law obligations, and the fair and equitable treatment, including minimum standards of treatment of a broad interpretation of the relevant host country is bound to make regulations easier to control as contrary to the treatment, which would endanger the government the right to regulate the environment in several other NAFFA cases, also have similar problems, such as Pope and Ta Bote Inc. v. Government of Canada case, the arbitral tribunal held that, NAFTA "fair and equitable treatment" is based on international law, of the power of the treatment outside of the right phrase, is not "Under international law, of the treatment of the phrase" restrictions, the restrictions of international law will make foreign investors less than the domestic investors of treatment which is inconsistent with the principle of national treatment, while in Meyer v. Government of Canada case, the arbitral Court ruled that the Canadian government violated NAFFA section 1105 (minimum standard of treatment requirement is largely based on its violation of national treatment, and advocates a "minimum standard of treatment" is broader than national treatment.

I believe that the investment treaty, the "fair and equitable treatment" clause of the abstraction, ambiguity makes it have a declaration of investment protection will explain the role of pArties in general and can not be directly applied to the specific rights and obligations of the PArties would be fair fair treatment and transparency requirements of national treatment, minimum standards of international law linked in international law has not been generally supported, the minimum standards of international law itself is a very ambiguous meaning of the concept, developing countries do not accept this concept, but do not want to as a measure of the fair and equitable treatment standard size. NAFFA investment dispute cases in the use of the flexibility required to define the concept and the host country's compliance with fair and equitable treatment, and the investors filed as international arbitration, the claims are based on the host normal legal control measures, the legitimate rights of foreign jurisdiction is undoubtedly a challenge.

(Four other more contentious issues
BITs in assuming the host country under the national treatment and MFN obligations, as it involves more control measures, in determining foreign investors and investors within the country, foreign investors could enjoy "equal treatment" and the two are living in "similar situation ", the need to combine the concrete facts to determine, so involved in several cases under NAFTA gave the tribunal the discretion left, it tends to cause controversy.

For foreign investors, whether based on "umbrella clause" claim breach of contractual obligations and the host country shall bear the responsibility, under investment treaties, international arbitration tribunal have mixed views, ICSID arbitration tribunal in SGS v. Pakistan case identified in the host country Pakistan contract violations that resulted in the agreement under the "umbrella clause" under international obligations, but the recent ruling of the arbitral tribunal also reflects different views on this issue, such as EIPaso v. Argentina, and BP-Pan American v. Argentina's tribunal ruled that the U.S. bilateral investment agreements with Argentina's umbrella provision of any contract claim can not be interpreted as a violation of international law are [6]
Second, international investment treaties in terms of defensive mode set
In order to avoid the jurisdiction of foreign countries, the normal measure is recognized as a violation of investment treaty, it is necessary to take some appropriate ways to clarify the controversial provisions, combined with the existing practice of investment treaties, and some scholars suggest, can be considered in the investment treaty Set some has a "defensive" nature of the terms.

(An exception to the applicable provisions of
From the practice of investment treaty, an exemption from the state based on national security and vital interests of foreign jurisdictions to adopt the measures imposed by investors accused of indirect and v. As the danger of international arbitral tribunal, set the escape clause in the treaty is the most direct and the use of The safety valve is very popular model. Specifically, take exception with the following ways: [7]
1. The exceptions provided for by Appendix: the liberalization of investment treaties in the appendix of many government controls or in the future will be possible to implement measures to exclude the provisions of the treaty or a pArt of the scope of application of the provisions, such as China and Spain on the Promotion and Reciprocal Protection of Investments Agreement Protocol it provides for exceptions to national treatment, any of our existing measures inconsistent with national treatment and the continuation of the correction does not apply to national treatment requirements. This exception is a very wide range of measures under the government, both the government can be excluded from the collection of various control measures, investor - State dispute settlement mechanism with the potential threat to the country of foreign jurisdiction clause, it can also ensure that the Government maintain, implement or in the future implementation and investment treaties do not conform to the measures, normally in Appendix or an exception to the provisions of the Protocol, are involved in the liberalization of the body contains the content, you need to gradually relax the measures.

2. The body of the treaty, or through special sections or special provisions listed in a pArticular type of government control measures as an exception to the application of the treaty: the Treaty lists some tax measures, compulsory licensing measures, such as in Colombia Model BIT Article 2 , paragraph 4 states: Nothing in this Treaty shall not apply to tax measures can be used as an exceptional measure can also be implemented to protect the environment, including government, labor, human health and other measures, it is opposed to the exception provided in the appendix, to reflect that the Government has some specific policies such as environmental protection, etc. to strengthen controls intended to, or reflect the government's taxation policies need to have control over freedom.

3. General exceptions to GATT20 general exception for the template: the ASEAN Free Trade Agreement Article 13: The implementation of measures set out in this Article shall not be in the same conditions between countries constitute unwarranted or unreasonable discrimination means or constitute a disguised form of investment flows restrictions of this Agreement shall be construed to prevent Member States to adopt or implement the following measures: (a for the protection of national security and public morals, (b to protect human, animal or plant life or health of the necessary measures ... ...

This approach is generally the exception in the free trade agreements (including investment content, will produce a range of issues, members will be able to act as a collection of excuses? To determine what is "unwarranted or unreasonable discrimination" standard? WTO Trade on the criteria for judging whether to borrow? these questions are still no clear answer.

(B limit the scope of indirect collection
Since the United States, the Canadian government's control measures under the NAFTA also suffered from investor's indirect collection of the allegations and cause public and domestic public dissatisfaction and criticism, the United States, the Canadian government to respond immediately in their new BITs template to begin the identification requirements imposed on the number of indirect criteria, to limit the scope of levy expansion trend, trying to protect the host country to some extent, the legitimacy of the public interest, such as the 2004 U.S. - Uruguay BIT Annex 4, paragraph 1 provisions should be fact-based, case-study identified a variety of factors constitute indirect expropriation, these factors include: "1 Although the implementation of a contracting party action or series of actions for the Economic value of investment has a negative effect, but only according to The Economic impact of government action itself can not be a finding of indirect expropriation, 2 government action on the obvious, reasonable investment for which the degree of intervention, three. characteristic of government action. "Although these three factors are very abstract, but the first Restrictions on issue of indirect factors impose a signal range is extremely obvious.

In addition, the United States - Uruguay BIT Annex 4, paragraph 2, states: "Unless special circumstances, a party designed to protect legitimate public welfare objectives, such as public health, safety and environment to develop and implement non-discriminatory regulatory actions, does not constitute an indirect charge. "and listed the goals of public welfare is not exhaustive, list is based on considerations greater certainty the U.S. model BIT 2004, Article 18 is a major security exception will perform the maintenance of international peace, security or protect its vital security interests in the obligations of the measures taken exception to the treaty as a whole, this collection of the United States except through indirect, major two-pronged security exceptions, etc., to ensure the country's Economic sovereignty is not threatened.

In 2004, the Canadian model BIT with the United States made similar provisions. In short, the developed countries have been fully aware of the need to limit the scope of an indirect charge.

(C to clarify some key terms
Broad definition of investment has become a common practice in BITs and investment more broadly defined, assumed the responsibility to protect the host country the more. The current international investment treaties, which generally take three definitions: the "asset-based" definition of investment, "based on enterprise "definition of investment," complete list "definition of investment, the investment cycle definition [8] Columbia Investment Treaty Article 2 Model 3 is based on enterprise-based definition, requires investment of at least should have the following characteristics: 1. On the commitment of capital or other assets, 2. Expected profit, 3. Bear the investment risk. [9] model to the investment treaty, Mexico is also enterprise-based definition of investment [10] This definition is clearly reflects the parties want to protect is a long investment cycle of direct investment.

For national treatment, the United States related to the practice in recent years, the concept of "similar situation" concept, allowing the arbitral tribunal ruling, the WTO system, to borrow the "similar products" related to the judge interpretation, although there is no very clear criteria to judge the host country's compliance with national treatment, but at least for the specific case, the solution provides a solution ideas.

(D investor - State dispute provisions of the defensive
In BITs, the host country to give up jurisdiction and allow investors to submit the dispute to ICSID arbitration is international Development of recent liberalization of international investment is a trend, but if no investor - State dispute mechanism to impose appropriate restrictions, the host may be due to the financial crisis and other major events take a variety of control measures, faced lawsuits from the waves of foreign investors in Argentina to pay for this on a very painful lesson. [11] Therefore, for international investment dispute settlement, the host country should make full use of < > And <<Vienna Convention on the Law of Treaties>> granted to the host of the "case by case approval of consent" power, "local remedies first," right, "the host application of the law" right "major security exception" the right [12]
So in the BIT has been granted for foreign investors to directly apply for the right to international arbitration, to prevent other countries also require investors to have direct recourse to apply MFN international arbitration decision, consider the scope of the MFN limits in the physical process, and does not apply to dispute settlement procedures, and to impose "non-retroactivity" restriction.

As for the umbrella clause, Colombia BIT umbrella model simply does not contain any provisions to avoid unnecessary controversy. [13]
(E preamble additional investment protection provisions of other public policy objectives
Interpretation based on the basic principles of treaty law, the preamble can be interpreted as the substantive provisions of the Treaty to supplement the traditional international investment treaties are based for the purpose of promoting and protecting investments, such as 2003, China and Germany, concluded on the promotion and mutual protection of investment agreement The preamble to be expressed as: Parties, "Party of the investor is willing to the other Contracting Party to create favorable conditions for domestic investors, to encourage understanding, investment promotion and protection will help encourage investors to the enthusiasm and increase prosperity, is willing to strengthen economic cooperation between the two countries, Have agreed as follows .... "As the preamble to emphasize that these two parties to promote economic cooperation and mutual investment, the importance of good environment, then the foreign investors in government measures to control and dispute litigation to the arbitration tribunal, the arbitral tribunal to interpret the provisions of the relevant identification, they will give priority to the preamble of the measures with the purpose of protection of investment, which will help investors to make a finding.

There are more and more clearly defined investment treaty preamble, the objective of investment promotion and protection need to respect other important public policy goals, these goals include the health, safety, environmental and consumer protection, or the internationally recognized labor rights maintenance, such as NAF-TA, the Energy Charter and others have formal preamble (Preamble, lists a number of treaties intended to achieve.

Third, China's new generation of investment treaties content changes
Since 1983, Switzerland has signed bilateral investment treaties, China has started with more than one hundred countries entered into bilateral investment treaties, including some amendments to the original BITs is worth noting that with the early 1980s 90 years of content compared to a more cautious investment treaties in recent years, China has signed investment treaties with major changes in attitude and content, in general, the new generation of China's Development of bilateral investment treaties showing liberalization, foreign investment protection standards continue to improve the situation, mainly reflected as follows:
(A more general definition of investment
China's foreign investment agreement generally lists five categories of investment assets of the protected form, is to "asset-based" definition of investment, but this kind of asset management and business ties, reflects our emphasis on the intention of the direct investment protection, such as 2003 Protocol to the Agreement special provisions for investment in Germany: "Investment means for enterprises to establish a sustainable economic relations, especially those able to influence corporate management of an effective investment." But relative to the pre-treaty, or a new generation of investment treaties expanded the scope of investment, such as the Sino-German treaty, for example, general provisions of intellectual property rights, the "trade secrets" and "goodwill" as a protected property, in addition to expanding the scope of the concession, in addition to mineral rights outside , an increase of farming, exploitation of natural resources concessions, indirect investment protection, etc. [14]
(Two in investment treaties, national treatment introduced
Prior to China in 1998 signed BITs, only a small number of agreements on the national treatment provision is made in these agreements, our commitment to grant national treatment obligation is a "soft" obligations, highly flexible, and some even constitute a substantial limitation on national treatment, such as China and the United Kingdom in 1986 Agreement, Article 3, paragraph 3 and the 1993 agreement between China and Slovenia, Article 3, paragraph 2, Contracting Party to use the wording should be "possible" "According to its laws and regulations "of the other Contracting Party national treatment to investors, while the 1988 Sino-Japanese Agreement, the provisions of the text is in line with modern investment law on the wording of the principle of national treatment, but in the Annex to the parties based on public order and national security not an exception to national treatment so early BITs did not really establish the country's national treatment principle.

After 1998, China's attitude on national treatment of foreign capital has made significant changes in the body in general no longer use the BITS "as far as possible," "according to its laws and regulations" and other restrictive language, such as China and Germany in 2003 on the promotion and mutual protection of investment agreement Article 3, paragraph 2: "Each Contracting Party shall accord to investors in the other Contracting Party in whose territory the investment and investment-related activities no less than to its own investors and investment-related activities of the treatment. "On the other hand, through the" freezing clause "to ensure that our country can continue to implement and maintain the existing national treatment with different protective measures, through the" retracement of the clause "that does not match our commitment to national treatment after the cancellation of the existing measures. [15 ]
Law Department from the Commerce Department announced China's foreign investment protection agreement signed between the text of view, most of the national treatment provisions to the same agreement with the German language, the official body to give foreign investors and their investments to national treatment, accessories and national treatment to certain restrictions still in place. In short, although China's implementation of national treatment is not yet complete, but this legislation indicates that China has been very inclined to take a formal, full national treatment.

Links to free download http://www.hi138.com (C accept it under the jurisdiction of ICSID arbitration
Since July 1998, China and Barbados signed BIT ICSID arbitral jurisdiction has been accepted uncritically, and after another round in more than 10 BIT ICSID arbitration to accept the jurisdiction of the levy submitted to ICSID arbitration is no longer limited to the amount of compensation but rather to expand investment-related disputes any dispute submitted to ICSID arbitration before the host country only require investors to exhaust domestic administrative review procedures. China has changed in the past submitted to ICSID arbitration under the jurisdiction of the "case-by-consent" attitude into a full acceptance of ICSID arbitration, which does not no restrictions on the way not only with the United States, Canada's BIT practice these different countries, may also be because of a BIT between China and other countries of the MFN clause makes this acceptable is full expansion, leaving the country at great risk. [16 ]
(D and indirect levy imposed
China's early BITs agreements such as the British have always advocated the nationalization of our country's attitude is still the national collection can be based on common interests, the nationalization of foreign investment in collection, the collection of compensation standard is appropriate compensation, and did not involve an indirect levy, but In the new generation of investment treaties can be clearly seen, China has gradually accepted the developed countries have been advocating the concept of the indirect collection and a comprehensive compensation claims, such as investment in the 2003 Sino-German agreement, Article 4 Section collected and compensation 2, states: "the other Contracting Party in the territory of investors of investment shall not be imposed directly or indirectly, nationalize or take them with expropriation, nationalization of the effect of any other measures (hereinafter referred to as" expropriation ", except for public needs and interests of compensation. This compensation shall be equivalent to taking charge or levy for the public knowledge of the investment expropriated immediately before the value, whichever is earlier. should not delay the payment of compensation should be included until the date of payment prevailing commercial rates of interest, and should provide effective and freely transferable. "substance of which has been advocated by the developed countries is very close to the" Helsinki principles. "
Fourth, our assessment of a new generation of investment treaties
Since 1998, foreign investment in China after the contents of the treaty have a greater reason to change, to accept some of the content of the terms of the investment liberalization, and the increase in the treaties on investment protection standards, mainly due to: First, China's foreign investment increased year by year, foreign investment is mainly concentrated in rich mineral, oil and other resources in developing countries, therefore, investment treaties with these countries to improve the investment protection standards have urgent needs, and second, after China's accession to WTO, the establishment of improving the market economy requires a more sophisticated legal system, liberalization of investment treaties is reflected in the developed market economies mature experience in the investment treaty practice to accept these terms will help China to develop a sound market economy system. [17]
However, China's investment treaties with a number of developed countries to negotiate and renew, to take our country is still free and open policy in developing countries, this practice has aroused the attention of scholars of domestic, concern was devoted to an analysis of the investment protection agreement signed the effect of attracting foreign investment, bilateral investment treaties that on a quantitative assessment of the actual effect of foreign capital needed to further deepen and improve, that is not scientific Research data show that BITs to attract foreign investment have significant positive effect [18] while other scholars China for decades to attract foreign investment and foreign large empirical relationship between BITs were investigated and found that the amount of investment in China, does not depend on investors' home country and China entered into any standard BIT, a major inflow of foreign capital in China decisive reason not to BIT, but a combination of factors such as economic and political result of the role, so the effect of BIT foreign capital should not be overestimated. [19]
To November 2004, China has signed 115 of external BITs, [20] Most of these countries are developing countries, which are developed and more investment in our country the Netherlands, Germany, after 2004, China and with Portugal, Finland signed a higher degree of liberalization, BIT, [21] a relatively large amount of our investment capital-exporting country such as Japan, South Korea, Britain, France and other countries to sign investment treaty with China does not expire, and the United States Canada's bilateral investment agreement negotiations are still ongoing, so the practical problems facing China in the future is: if all countries are implementing non-discriminatory liberalization of investment policies, or distinguish between developed and developing countries? As mentioned earlier, can be foreseen in the near future, although China's foreign investment will increase, but compared with the comparison of China's capital inflow and outflow data, China's total foreign investment in China is only roughly equivalent to the total foreign capital actually used 2.45% 4.78%, so in the near future China's investment treaty negotiation strategy should be to "distinguish between the two countries, the differential reciprocity" [22] for the freedom of developing countries can adopt an open policy to protect the country's foreign investment purposes, and to negotiate with developed countries, the should be careful to set some exceptions provisions. Here you can set the exception of China to explore.

Fifth, China's foreign investment treaties should be taken in terms of defensive
As China's investment is more broadly defined, in turn gradually to accept investment national treatment, foreign levy on the issue of compensation received "indirect expropriation", which are prone to causing the terms of investment disputes, so as to ensure that our foreign jurisdiction does not easily bring an international arbitration by investors, may consider the following strategies:
(An exception
First, China should continue to implement the Protocol in the Appendix or exceptions to national treatment, use the existing national treatment provisions of the freeze, retracement of the terms, and secondly, should learn from the U.S. model BIT 2004, the provisions of Article 18 of the major security exception, to our perform the maintenance of international peace, security or protect its vital security interests in obligations of the measures taken exception to the treaty as a whole, the right to control our government to leave more space.

(Two indirect taxation of
Learn from the U.S. - Uruguay BIT provisions on the scope of indirect restrictions imposed, even if the Government's investment in certain regulatory actions for the economic value of a negative effect, but based solely on the economic impact of government action itself is not a finding of indirect expropriation, must combine The purpose of government control measures, a comprehensive evaluation results and other factors in addition, can make exceptions for the indirect collection, to ensure the protection of legitimate public welfare objectives - such as public health, safety and the environment and the development and implementation of the measures are not to be identified indirect collection.

(Three international arbitration and investment disputes MFN Provisions
China recently signed BITs jurisdiction of ICSID arbitration to accept it, and there may be requirements for other countries will follow the MFN clause of the expansion, which, many scholars have expressed concern about China, and began to discuss countermeasures. Specific measures in investment treaties signed in the future should be to restore the original part of the accepted model, a package part of the acceptance of the principle, accepted as appropriate by-case exceptions to the position of the scope of application of MFN treatment to use more explicit wording to clarify its provisions do not apply to the program, not use dispute settlement, to prevent the IC-SID jurisdiction expansion. [23]
(Four other defensive provisions or terms
As mentioned earlier, China's current BITs signed in the introduction are taken to express the wishes of the wording of the promotion and protection of investment, the future may also reflect the Parties to consider joining to protect other public interests, national security objectives of the wording, leaving some policy space for national treatment, China should strive for during BIT negotiations to take exception to the list of national treatment means, as the umbrella terms of problems, some of China's investment treaties have been included with the meaning of the terms of the umbrella, but foreign investors can not based solely on its claim under international BIT claims, some Western scholars began to explore this possibility, even for foreign investors and China's state-owned enterprises can contract disputes submitted to international arbitration based umbrella clause analysis. [24] In my opinion, although China, Colombia did not like to cancel completely in the BIT umbrella clause, but investors can enter into specific contracts with specific contractual disputes, the laws applicable to our domestic law, rather than BIT, you can effectively avoid contractual disputes rise to the dispute under the BIT. Finally, China must adhere to standards of treatment in the treaty does not accept the so-called standards of international law, in order to avoid investors from developed countries and fair and equitable treatment to the occurrence of such ambiguous terms of disputes.

Notes:
[1] <<United States - Argentina bilateral investment agreements>> Article 4, paragraph 1.

[2] See Liu shoots: <<to see from the draft multilateral agreement on investment multilateral legal system to international investment>> set <<Comparative Law>> 2003 No. 2, p. 26.

[3] According to the United Nations Commission on Trade and Development Statistics, as of 1994 only, the world's known from only five international investment arbitration, to the end of November 2005, increased to 219 in the 61 respondent countries, 47 are developing countries, accounting for 77% see a single Mandarin: <<Calvo doctrine of the "death" and "renewable">> set <<International Economic Law>> 2006, Volume 13, No. 1, p. 194.

[4] Wei Yanru: <<On the recent ICSID arbitration to accept the jurisdiction of the overall defect>> set <<International Economic Law Journal>> 2006, Volume 13, No. 1, p. 133.

[5] Yu Jinsong: <<foreign equity and justice studies - generated by the practice of NAFTA Reflections>> set <<Law and Business Research>> 2005 No. 3, p. 43.

[6] Zhan Xiaoning: <<investor-State dispute settlement of the latest developments>> set <<International Economic Cooperation>> No. 9, 2007, p. 10.

[7] Howard Mann: Investment Agreements and the Regulatory State: Can Exceptions Clauses Create a Safe Haven for Governments?

http://www. had.org/investment/capacity/dci_forum_2007. asp. Browse Time: December 10, 2007.

[8] See has Huaqun: <<period of change the practice of bilateral investment treaties Review>> set <<International Economic Law Journal>> Volume 14, No. 3, page 9.

[9] THE COLOMBIAN BIT MODEL, http://www. Iisd. Org/investment/capacity/dci_forum_2007. Asp, www. Iisd. Org, browse time: December 10, 2007.

[10] Mexico's definition of corporate bonds, corporate loans and other forms of investment required period of 3 years.

[11] See Yan Cai from: <<accidentally decentralization, the waves of lawsuits - Argentina lightly treat the painful lessons of investment disputes the jurisdiction of>> load <<International Economic Law Journal>> 13, No. 1, p. 207.

[12] See Chen: <<foreign bilateral investment agreements in the four "safety valve" should not be hastily removed>>, set <<International Economic Law Journal>> 13, No. 1, p. 3.

[13] Pilar. V. Ceron: THE COLOMBIAN BIT MODEL, http://www. Iisd. Org. Browse Time December 10, 2007.

[14] Cui Yankun: <<China concluded bilateral investment treaties, the new development - from the old German Bilateral Investment Protection and Promotion Agreement comparative perspective of>> load <<rule of law and society>> 2007 No. 3, p. 705.

[15] Protocol to the Agreement to promote Sino-German Investment Protection Article 3: With regard to Article 2 and Article 3, the People's Republic, the third section 2 of article 3, paragraph 2 (that is, national treatment does not apply ( one in any existing non-conforming measures maintained within its territory, (b that the continued non-conforming measures, (c any such non-conforming measure changes, but changes can not increase the level of non-conforming measures.'s Republic of China will take all appropriate measures gradual removal of these do not meet the measures.

[16] <<International Economic Law Journal>> Volume 13, 2006 period there is a special article I demonstrate our overall acceptance of ICSID arbitration is wrong and risks, and discuss countermeasures. See Wei Yanru: <<On the recent ICSID arbitration to accept it jurisdiction of the defective>> Wang waves: <<"backward" or "advanced "?>>.

[17] Stephan W. Schill: Tearing down the great wall: The new generation investment treaties of the People's republic of China, Cardozo Journal of In-ternational and Comparative Law, Winter, 2007.

[18] Zhang Xiaobin: <<Effect of bilateral investment treaties attract investment experience of analysis>>, set <<International Economic Law Journal>> 2006, Volume 13, No. 1, p. 269.

[19] Chen: <<distinguish between two countries, the differential benefit>> set <<International Economic Law Journal>> Volume 14, No. 3, p. 56.

[20] ibid [4].

[21] See Department of Commerce website.

[22] ibid [19].

[23] ibid [4].

[24] ibid [13] (Yu Ying

Links to free download http://www.hi138.com