The ASEAN-China Investment Agreement: A regionalization of China’s BITs

Abstract

On 15 August 2009, the Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between China and the Association of Southeast Asian Nations was signed in Bangkok, Thailand. The Investment Agreement is the last one of the ASEAN-China free trade agreements. This paper analyzes the provisions of the new agreement, especially those on the scope of application, national treatment, MFN treatment, expropriation, and investor-state dispute resolution. Then, the paper compares the new agreement with other international investment agreements concluded by China or ASEAN. In comparison with the existing BITs between China and individual ASEAN member states, there are significant changes in the Investment Agreement which provides higher standard of investment protection. In this respect, the Investment Agreement is ‘new wine in a new bottle’. Nevertheless, such a standard of investment protection is common in the BITs signed by China since 2000 which constitute a new generation of Chinese BITs. Moreover, unlike some other investment agreements in the free trade arrangements, such as the Chapter 11 of the NAFTA and the ASEAN Comprehensive Investment Agreement, the Investment Agreement rarely touched upon the issue of investment liberalization, although the Framework Agreement of ASEAN-China FTA provided for creating a liberal investment regime and the ASEAN member states had insisted on provisions of investment liberalization in the negotiations of the Investment Agreement. In this respect, the Investment Agreement represents ‘old wine in the new bottle’. This paper concludes that China is not prepared to undertake investment liberalization obligations in its FTAs, negotiating an investment agreement in China’s FTA arrangements has been regarded as an opportunity to update its old BITs. The ASEAN-China Investment Agreement is rather a regionalization of Chinese BITs and an example of China’s influence on rule-making on regional level.