The ‘Greenization’ of Chinese Bits: An Empirical Study of the Environmental Provisions in Chinese Bits and its Implications for China’s Future Bit-Making

Abstract

Incorporating environmental provisions (EPs) in International investment agreements is an important way for states to confront grave environmental challenges through the discourse of international investment law. An empirical study of the EPs incorporated in all 104 Chinese BITs in force shows that only a limited number of Chinese BITs contain EPs and that the generational and regional distribution of the EPs are imbalanced. The overall lack and low quality of the EPs make Chinese BITs as a whole insufficiently environmentally friendly. This study reveals that Chinese BITs are getting increasingly ‘green’, especially the recent decade. Mere incorporation of EPs in BITs does not necessarily make BITs ‘green’. Whether and to what extent EPs can play a constructive role in environmental protection depends on how they are applied and how the two seemingly conflicting purposes of BITs, i.e. investment protection and environmental protection, are reconciled in international investment arbitration. China has an urgent need to ‘greenize’ its BITs. Toward this end, China should, first, enhance the availability and effectiveness of EPs in its BITs; second, make consorted efforts to incorporate certain EP-related provisions in its BITs and relevant national laws; third, change its current dichotomic BIT-making strategy.