The (provisional) end of debates on narrow dispute settlement clauses in PRC first-generation BITs?—China Heilongjiang et al v Mongolia

Abstract

To this day, arbitral tribunals constituted under international investment treaties (investment treaty tribunals) only dealt with a handful of investor-state arbitrations relating to Chinese investors abroad. In 2010, China Heilongjiang International Economic & Technical Cooperative Corporation, Beijing Shougang Mining Investment Company Ltd. and Qinhuangdaoshi Qinlong International Industrial Co. Ltd.-three companies incorporated in the People's Republic of China (PRC) (the Claimants)-relied on the 1991 bilateral investment treaty (BIT) concluded between the PRC and Mongolia (the PRC-Mongolia BIT) to bring an expropriation claim against Mongolia for its cancellation of mining licenses held by the Claimants in the Tumurtei iron ore mine in the North of Mongolia. The UNCITRAL tribunal (the Tribunal) in China Heilongjiang et al v Mongolia (China Heilongjiang) rendered an award on 30 June 2017 (the Award) rejecting the Claimants' claim for lack of jurisdiction ratione materiae under the narrow dispute settlement clause in the PRC-Mongolia BIT. The Tribunal decided diametrically opposed to two previous investment treaty tribunals that had to address the same interpretative question with regard to identically worded narrow dispute settlement clauses in two other 'first-generation BITs' of the PRC. The Tribunal also deviated from findings by national courts that were sitting in proceedings to set-aside an award rendered by one of these earlier tribunals. This case report deals with the current state of case-law relating to the application of narrow dispute settlement clauses in PRC first-generation BITs and addresses the question of whether the most recent decision in China Heilongjiang points to an end of interpretative debates that are existing in this respect.