The EU–China Bilateral Investment Treaty: a challenging first test of the EU’s evolving BIT model

Abstract

The EU–China Bilateral Investment Treaty (BIT) is a genuine landmark in bilateral trade and investment relations and the evolution of the EU’s Common Commercial Policy. However, negotiating a BIT with China presents distinct challenges, primarily due to the radical differences that exist between the EU and China’s legal frameworks, their differing values and levels of development, and the structural features of their economic models. The EU’s evolving BIT model is still in the very early stages of its development, and China remains generally cautious on consent to international arbitration tribunals. This paper makes a novel contribution to the literature on EU–China investment law in several respects. Firstly, it provides an up-to-date account of how the negotiations for an EU–China BIT have been shaped by competitive externalities, i.e. current developments in the negotiation of Free Trade Agreements or BITs between the EU or China and third parties, or equally those among third-parties excluding both the EU and People’s Republic of China. It thus provides a broader context for understanding the pursuit of an EU–China BIT, framing the initiative in terms of mutual regard for external competitive pressures which threaten both parties with the prospect of disadvantage vis-à-vis key competitors in the others’ market for investment. Secondly, it traces the motivations for a BIT between the EU and China by examining recent bilateral investment and trade disputes, illustrating the potential that a BIT might hold to mitigate future tensions. Thirdly, it frames the proposed BIT in terms of the EU broader trade policy and trade diplomacy goals on China.