Conceptuality or Textuality? Understanding the Notion of Expropriation in the Context of Tza Yap Shum v. The Republic of Peru

Abstract

Although China has been an active ‘treaty-maker’ in the realm of international investment arbitration as evidenced by its more than 120 bilateral investment treaties, the utility of these BITs has been very limited. Substantive standards such as expropriation and compensation have never been comprehensively tested with respect to these BITs. This article scrutinizes the concept of expropriation by reference to Chinese investment treaty jurisprudence, in particular, the final award of Tza Yap Shum v. The Republic of Peru and China’s free trade agreement with Peru, the only Chinese BIT-related ICSID case. This article critically examines, in a comparative context, the treaty interpretation methodologies employed by the tribunal in interpreting expropriation under the China-Peru BIT, which is one of the earlier Chinese BITs. A thorough study of this subject is of great significance to interpreting the terms of indirect expropriation and compensation in Chinese BITs, thereby offering more concrete foreign investment protections based on investment treaties.