Article from: TDM 3 (2017), in Editorial
The One Belt One Road Initiative ("OBOR") more recently also labelled as Belt and Road ("B&R") or Belt and Road Initiative ("BRI") has been the Chinese development strategy aiming at the economic integration of Eurasia and the growth of China's Western Provinces, largely through the infrastructural and transportation projects. OBOR's core idea has been to revive ancient land-trade routes in the framework of the Silk Road Economic Belt project ("SREB") supported by the Twenty-first Century Maritime Silk Road ("21MSR") as proposed by Xi Jinping in Autumn 2013 first in Kazakhstan with regard to the SREB, and subsequently in Indonesia with regard to the 21MSR. In addition, the OBOR/SREB also includes regional platforms of co-operation, particularly the 16+1 Group (G16+1) gathering China and Central and Eastern European countries ("CEEs") which was established in April 2012 in Warsaw, that is over a year ahead of the announcement of the OBOR.
The OBOR has been pictured as a mostly geopolitical project with potentially far-reaching economic ramifications. Thus, the OBOR has for long attracted massive attention from commentators and scholars focusing on politics, international relations and economics. However, for the time being, the OBOR is still at the very initial phase of realisation and its success essentially depends on the formation of efficient institutional and regulatory environment along OBOR's trade routes. We initially identified and classified a number of potential OBOR-related problems, inviting contributors to explore the legal dimensions of the controversy surrounding the OBOR.
PART 1 - Institutional Framework of the OBOR.
As to OBOR-related problems grouped as the 'Institutional Framework of OBOR', we have initially asked the following questions. What are the potential issues with the legal form/structure, ownership, capitalisation, decision-making process, and governance of China-led institutions meant to finance OBOR-related projects, including the Asian Infrastructure Investment Bank ("AIIB"), the New Development Bank ("NDB"), the New Silk Road Fund ("NSRF"), and the China Investment Corporation ("CIC")? What are the challenges to the OBOR transit routes arising out of inter-regional and international rivalries? How do these institutions compare with the solutions commonly accepted in the existing system of development aid (under the World Bank's leadership) and by sovereign wealth funds of other countries? Where do Chinese state-owned commercial banks stand in this landscape? What are the distinctive features (compared with Western development-aid institutions), if any, of conditions of financing by OBOR-related institutions, such as governing law and terms and conditions of loans or procurement-rules related to financed projects? How is sustainability integrated into operations of such institutions including labour right, social rights, protection against expropriations, protection of indigenous peoples? How does it compare with existing development aid institutions? Development on a specific AIIB framework / institution to handle investment disputes? What are the potential issues with the settlement of disputes, including disputes between 1) stakeholders in financing institutions, 2) financing institutions and borrowers, 3) foreign contractors / suppliers / service-providers and borrower's procuring agencies? We have received the following contributions, addressing those problems:
1) Donald J. Lewis and Diana Moise in the contribution titled 'One Belt One Road ("OBOR") Roadmaps: The Legal and Policy Frameworks' map and plot the major legal and policy dimensions and dynamics of the OBOR. The authors first consider the rapidly changing nature of interactions between the United States, the European powers, Russia, and China from a geopolitical perspective. Then, the authors consider the implications of such geopolitical shifts for the future conduct of international relations and business with China, which may be conditioned by proposed public international law changes currently advocated by the Chinese government. Next, the authors examine new developments at the domestic level, marked by China's trade and economic policy adjustments in light of rebalancing, and its increasing focus on the use of public private partnerships ("PPPs") and private investment, both internally and externally. Subsequently, the authors address particular OBOR implementation mechanisms, including the novel use and status of economic/transit corridors and the central role of trade facilitation. Finally, the authors explore OBOR implications of China's participation in international commercial and investment arbitration.
2) Maria Adele Carrai in the contribution titled 'It is not the end of History: The Financing Institutions of the Belt and Road Initiative and the Bretton Woods System' asks whether it is correctly assumed that China's Belt and Road Initiative (BRI), and the international developmental financing institutions (IDFIs) recently created in order to support it, are going to challenge the Bretton Woods institutions and, as a consequence, the liberal order, contributing to a global shift in power from the United States to China. After introducing the main Chinese financial institutions that are going to support the BRI, the, the author looks at the key differences between the BRI related IDFIs and the Bretton Woods institutions, focusing in particular on the equality of representation, conditionality and the internationalisation of the renminbi. The author then looks at how the BRI's IDFIs fit within the existing international legal order. By comparing the mission and principles of the BRI with those of Bretton Woods, the author argues that the BRI related IDFIs are nested in the current international legal system and that they can contribute to the realisation of some of its objectives. The author concludes by arguing that, despite the fact that the rise of the BRI's IFDIs poses new normative questions that in the long run might challenge the Bretton Woods system, the zero-sum game that characterises much of the literature about them and the BRI, hampers our understanding of these institutions. These should, instead, be understood as Bretton Woods' healthy competitor in a context of increasing multipolarity. The author finds that there is no Fukuyama 'end of history', neither in its original sense, as the liberal order will be increasingly complemented by other centres of power, nor in an opposing sense, as China's BRI and its related financing institutions are not only nested in the liberal institutional framework, but are also still far from being capable of replacing it.
3) LU Yue, TU Xinquan, and JIA Yingqi in the contribution titled 'The Effect of the "Belt and Road Initiative" on along Countries' Employment' use the difference-in-differences estimation model to measure the effect of the Belt and Road initiative on the employment rates of OBOR-participating countries. The authors find that empirical results show that OBOR has a positive effect on the total employment of these countries. Since the initiative was implemented, the average employment growth rate of OBOR countries has been 0.093% higher than the average those of the Non- Belt and Road countries. Within the labour market, the impact of the initiative on the employment structure of OBOR countries had the highest impact on the growth rate of male employment (0.138%) and tertiary education employment (1.276%).
4) Sungjin Kang in the contribution titled 'One Belt, One Road Initiative into a New Regional Trade Agreement: Implication to the WTO Dispute Settlement System' observes that the OBOR itself does not include making a new rule to govern the trading order between Europe and Asia. The author notices, however, considering that China is currently negotiating the Regional Comprehensive Economic Partnership (RCEP) agreement with the ASEAN and others, and it has already signed the FTA with Pakistan, the OBOR initiative may lead to a new regional agreement covering Asia and Europe, and perhaps make the largest regional trade agreement. The author is of the view that the realistic scenario will be that China invites Russia, Pakistan, and Central Asian countries to join the RCEP as the first step (Expanded RCEP, or ERCEP), and the Expanded RCEP may negotiate an FTA with the EU. At the same time, the author calls for considering how the Expanded RCEP-EU may look in terms of dispute settlement system, and how it will affect the WTO Dispute Settlement System (WTO DS). The author is of the view that such dispute settlement system may complement the WTO DS, or even provide a "safeguard" for the ERCEP Member States in case when the WTO DS is paralyzed. Also, the experience of such dispute settlement system in the ERCEP-EU FTA may provide momentum to amend the current WTO DSU, and ultimately improving the effectiveness of the WTO DS.
PART 2 - Expansion of Public and Private Investment in Eurasia.
As to the OBOR-related problems grouped as the 'Expansion of public and private investment in Eurasia', we have initially asked the following questions. What are the current developments/negotiations on bilateral investment treaties (BITs) and Preferential Trade Agreements (PTAs) investment chapters between China and countries situated along OBOR routes? What is the role of the protection of state-owned enterprise as well as sovereign wealth funds in such negotiations? What is the current state of market access for foreign investment in transportation infrastructure (railways, toll roads, intermodal terminals, etc.) along the OBOR routes, and the prospects for liberalisation? Will Chinese investors / multinationals be trendsetters or adjust to local conditions of terms of corporate governance, labour standards, environmental protection and generally in terms sustainability? What are the pending and decided investor-state disputes and prospects for investor-state arbitration? We have received the following contributions, addressing those problems:
5) Anna Chuwen Dai in the contribution titled 'The International Investment Agreement Network under the "One Belt One Road" Initiative' offers a high-level review of the current network of international investment agreements (IIAs) between China and the OBOR countries (OBOR IIAs). First, the author examines China's outbound direct investment (ODI) to and inbound direct investment (IDI) from the OBOR countries. Second, the author summarizes the various development stages of Sino IIAs. Third, the author turns to the IIAs between China and the OBOR countries and analyzes their features and effectiveness. Fourth, the author discusses whether the present network of OBOR IIAs is sufficient for striking a balance between protecting foreign investment and promoting the host states' economic and social interests. Finally, the author suggests preliminary steps for improving this growing IIA network.
6) Matthew Hodgson and Adam Bryan in the contribution titled 'Bumps in The Road: Identifying Gaps in China's Belt and Road Treaty Networks' analyse, from a quantitative and qualitative perspective, the investment treaties that are already in place along the Belt and Road countries. In performing this analysis, the authors look at how the existing treaties correlate with the so-called three generations of Chinese bilateral investment treaties, and the effect that this has on the quality of protections provided. This article also draws on these threads in an attempt to identify 1) gaps in the Treaty network, 2) where these are priorities, and 3) how such gaps may be plugged by either China or the Chinese investors themselves.
7) LAI Huaxia and Gabriel M. Lentner in the contribution titled 'Paving the Silk Road BIT by BIT: An Analysis of Investment Protection for Chinese Infrastructure Projects Under the Belt & Road Initiative' examine the investment protection available to Chinese infrastructure investors under the OBOR. Going beyond the conventional account of three generations of Chinese investment treaties, the authors collect data on all the Chinese investment agreements with the OBOR countries, and develop an analytical framework tailored to the OBOR's signature characteristic of infrastructure investments. The authors first describe how a typical infrastructure investment is structured under the B&R Initiative, and identify the major risks that investment treaties can help mitigate. The authors then map the variance in the treaties' major constituent elements and discusses the relevant jurisprudence. In particular, the authors analyse the issues that are most likely to arise in arbitral proceedings that involve infrastructure investments. The authors conclude analysis by discussing potential avenues of ensuring better protection besides renegotiating the investment treaties.
8) YIN Wei in the contribution titled 'The Role of State-Owned Investors and Chinese Investments in Europe: The Implication of the China-EU BIT' observes that the recent surge in Chinese investment in Europe and China's approach to EU Member States via OBOR-related investment have raised anxiety and even resulted in a political backlash from the EU and several Member States. The author explains that this could largely be attributed to the role of Chinese state-owned investors (SOIs) played in overseas investments and in the domestic economy. With the support of the OBOR initiative and 'going global' policy, a majority of SOIs' investment has been made in strategic assets and critical infrastructure, while European firms have had limited access to the Chinese market. Instead of over-focusing on the state ownership of SOIs, the EU calls for reciprocity in market access and fair treatment for European investors, while China intends to ensure non-discriminatory treatment and a continued open market for Chinese SOIs. The China-EU BIT therefore provides the right platform to discuss and address issues of SOIs related to Chinese overseas investment. The liberalisation of market access, and treatment and protection for SOIs would be important factors and key points in BIT talks. However, it is also challenging for China and EU to reach a consensus. The EU's reaction to Chinese investment and its interest in participating in the OBOR depend on not only the outcome of the BIT negotiations, but also the progress in Chinese domestic reform, which is also in the interests of China.
9) Karlok Carlos Li and Julien Chaisse in the contribution titled 'Infrastructure Investments: Port, Rail, and International Economic Rules' offer a thorough analysis of the legal dimensions of Chinese foreign direct investment (FDI) in port and rail infrastructures under China's OBOR. As part of the initiative to facilitate FDI, China has pursued further liberalization and deregulation by establishing Free Trade Zones (FTZs), deepened reforms of outbound direct investment regulations, strengthened regional free trades by forming a B&R-based Free Trade Area (FTA) and continued the reforms in port governance in China. Sovereign Wealth Funds and State-owned Enterprises are the two major Chinese FDI vehicles investing in port and rail infrastructures. However, OBOR countries embrace various attitudes towards these FDIs for which the WTO law, IMF's Santiago Principles, and OECD Guidelines come into play. Investor-state Arbitration (ISA), is viewed as an effective method to resolve the dispute arising from port and rail investments with the host countries. A sample of five OBOR countries (Turkey, Djibouti, Nigeria, Pakistan and Sri Lanka) are used and key hypothetical issues surrounding them are discussed, which include the definition of investor, choice of law, enforcement and annulment, expropriation, non-discrimination (national treatment, most favored nation, and fair and equitable treatment) in order to identify the most pressing legal challenges of the OBOR in the context of the essential port and rail investments.
PART 3 - Legal Challenges to Trade Along the OBOR Routes.
As to the OBOR-related problems grouped as the 'Legal Challenges to trade along the OBOR routes', we have initially asked the following questions. What are current problems of trade facilitation and reduction of non-tariff-barriers to trade along the OBOR routes, such as 1) reduction of custom clearance procedures) prospects for the liberalisation of the provision of land-transportation-services within EEA, between Russia/EEA and the EU, or between Russia/EEA and China. 3) taxation of transportation services along OBOR routes? How can the new transit regime be harmonized with any bilateral and sub regional agreements that might exist along the OBOR routes? What are the current issues in the lex mercatoria used along the OBOR routes, particularly in railway truck and multimodal transportation, such as 1) the choice of law and forum, 2) choice of instruments securing the repayment of trade credit (bank guarantees, letters of credit, any other?), 3)insurance of transport across several countries? Are there any obstacles to dispute settlement along OBOR routes, including 1) intergovernmental dimension, for example long-lasting Russia's disputes with Central European Countries over truck permits), and 2) international private law dimension, i.e. the recognition and enforcement of foreign courts decisions and arbitration awards? What public or private dispute resolution systems will form part of the trade and investment transactions encouraged by OBOR? Will OBOR itself develop any new dispute resolution schemes or will OBOR-related transactions rely on existing mechanisms for dispute resolution? We have received the following contributions, addressing those problems:
10) Joanne Waters in the contribution titled 'Unimpeded Trade" in Central Asia - A Trade Facilitation Challenge' observes that one of the key priorities for the One Belt One Road Initiative is "unimpeded trade" and looks at what means for Central Asia, which has emerged as a key transportation hub in the OBOR project. As a landlocked region, previously considered remote and inaccessible, the new investments and upgrades in rail and road connectivity have the potential to turn the region into a crossroads of trade between East and West. However, that potential can only be realised if complementary reforms are put in place to ensure the smooth flow of goods across borders. The author analyses the trade policy objectives of five countries in Central Asia, the problems faced by traders on the ground and the regional and multilateral priorities for trade facilitation in the region. The author then asks whether OBOR is likely to lead to an improved trade environment. The author concludes that OBOR alone is insufficient to achieve this outcome and that the region will need to look to implementation of the WTO's Trade Facilitation Agreement plus regional initiatives to address the specific constraints faced.
11) ZHU Weidong in the contribution titled 'Some Considerations on the Civil, Commercial and Investment Dispute Settlement Mechanisms between China and the Other Belt and Road Countries' observes that a large number of civil and commercial disputes have arisen currently between China and the other OBOR countries and that, with the furtherance of the OBOR, more and more such disputes will arise. The author notices, however, that there are some deficiencies existing in the civil and commercial dispute settlement mechanisms between China and the other OBOR countries. For example, there are not enough bilateral and multilateral treaties between and among China and the other OBOR countries dealing with the settlement of such disputes. Besides, the diversified legal systems in the OBOR countries will make it difficult for the parties or the judges to prove the foreign law. At the current stage, China should encourage the Chinese parties to settle the disputes with their counterparts from the other OBOR countries through arbitration. In the long run, China should first improve its legal systems relating to the settlement of foreign-related cases in order to make it an attractive place for the parties from the other OBOR countries. Then China should conclude more bilateral treaties on civil and commercial judicial assistance with the OBOR countries, and finally China may push to establish a multilateral system among the OBOR countries, so as to create a favorable legal environment for the parties from these countries.
12) MA Sai in the contribution titled 'Energy Dispute Settlement and the One Belt One Road Initiative ("OBOR")' observes that it is uncertain whether the available dispute settlement mechanisms established by international treaties are suitable for settling energy disputes along the OBOR routes. Alternatively, OBOR countries may also form a new dispute settlement scheme to better address their geopolitical and economic concerns. Whichever direction the OBOR takes, challenges and puzzles remain. If it uses the available frameworks, should it be bilateral or multilateral? If the countries plan to design their own dispute settlement system, do they have such competence and influences? The authors examine the costs and benefits of different international frameworks containing dispute settlement mechanisms, in order to find an efficient alternative for the OBOR to strengthen regional energy cooperation and governance.
13) Anna Aseeva and YIP Ka Lok in the contribution titled 'When Yes means Yes: Free, Prior & Informed Consent in 'One Belt One Road' Projects in the context of Transnational Investment Law and Arbitration' observe that, with the OBOR's routes crossing over politically fragile countries, the potential impact of OBOR investment projects on the rights of the local communities, including indigenous population, and the adverse reaction this might generate towards these projects could have serious financial, social and geo-political implications. The authors first highlight the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration ('TILA'). The authors then study the different sources of international law to scope the right of indigenous peoples to free, prior and informed consent ('FPIC') in the context of OBOR projects. The authors then analyse the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.
PART 4 - Case Studies.
As to the OBOR-related problems grouped as the 'case studies', we have initially asked the following questions. What problems have so far been faced by governments, financing institutions, investors, and/or governmental agencies and their contractors during the realisation of first OBOR-related projects? Have any disputes already arisen related to the realisation of such projects? We have received the following contributions, addressing those problems:
14) Bashar H. Malkawi and Joel Slawotsky in the contribution titled 'National Security Review of Chinese Foreign Direct Investment ("FDI") into the Cooperation Council for the Arab States of the Gulf ("GCC"): Challenges and Opportunities' observe that, while reviewing FDI generally involves a careful cost-benefit evaluation and a rational balancing of interests, additional dimensions of complexity arise in terms of outbound Chinese investment into the Cooperation Council for the Arab States of the Gulf (GCC) which impacts on this traditional balancing of interests: 1) the incipient U.S.-China rivalry is underway which may force both the U.S. and China to utilize auxiliary power in a global game for hegemonic leadership and 2) China's unique one-party political system which plays a prominent role in the governance of private companies. Most OBOR investment will be through Chinese State Owned Enterprises - thus raising the potential of non-financially motivated FDI (as it does with other nations' state-owned companies). In sum, China's outbound FDI into OBOR projects into the GCC will be more complicated given both the special relationship between the GCC and the U.S. as well as the unique nature of China's political system. The authors address the national security review challenges of China's OBOR investment in the GCC with particular reference to UAE, namely, balancing the potential immense economic advantages - which positively align with the UAE Vision 2021 - and potential national security concerns. The question of national security review of Chinese FDI will become increasingly important not just for the UAE but also for the GCC and dozens of other nations which fall within OBOR's realm.
15) TAN Yan and Sheraz Javaid Mian in the contribution titled 'China-Pakistan Economic Corridor ("CPEC") Dispute Resolution Mechanism' discuss the China-Pakistan Economic Corridor ("CPEC") which is a comprehensive trade-cum-development deal that not only establishes economic and strategic connectivity between Pakistan and China but also has the potential of integrating other sub-regions of Asia and Russia. The CPEC could play a key role in improving economic and strategic environment. If it is implemented as planned, CPEC can offer infinite bounties to many countries in years to come. The majority of construction projects will be led by Chinese main contractor and sub-contracted to Pakistani contractors. Apart from China, companies from European countries are also to participate in the various CPEC projects. In view of the above, the authors therefore study and examine the trade & investment methodologies from different projects in CPEC. The authors critically analyse the process and highlight the problem areas that may be faced due to cultural and language differences between the two States. The authors suggest the methodologies and route to efficacious dispute resolution during the life cycle of the project. The authors hope to provide pilot recommendations to the OBOR projects in other regions.
16) Aweis Osman in the contribution titled 'China's Maritime Silk Road and the Future of African Arbitration' observes that although Chinese investment in Africa predates the formal MSR initiative, countries in East Africa have experienced and can expect to see intensified Chinese investments in infrastructure in order to establish new commercial hubs along the MSR route, linking regions together via railroads, ports, energy transit systems, and telecommunications technology. Infrastructure projects involving multiple jurisdictions and contracts are dispute-prone for a number of reasons and often militate toward arbitration as a preferred means of dispute resolution. The Chinese government has increased its legal diplomacy efforts in Africa to promote joint dispute arbitration mechanisms, establishing the China Africa Joint Arbitration Centre (CAJAC). Initially launched in South Africa, CAJAC is looking to partner with East African arbitral institutions, with a particular interest in advancing its MSR initiative. In this regard, Mauritius, Kenya, and Rwanda are important jurisdictions to follow as they have made significant progress in developing as safe seats for international arbitration. The MSR initiative will certainly continue to influence the development of African arbitral institutions, which require serious consideration when structuring infrastructure transactions involving Chinese and African parties.
17) Maria Bun in the contribution titled 'The Energy Charter Treaty and Central Asia: Setting an International Standard for Energy-Related Disputes' discusses how Central Asia has emerged as one of the most influential energy-producing regions in the world. Economic development in the area exposes countless new legal questions involving international energy law, the rights of investors and sovereign states, the legal instruments governing energy, and the dispute resolution mechanisms available to conflicting parties. The historical-political positioning of the region is particularly pertinent; Central Asian states present a blank slate from which legal norms are first emerging. While other parts of the world have a long history of the rule of law and legalization, Central Asia's laws and lawmaking institutions only recently emerge anew from their Soviet roots. They are well-placed to bear the introduction of new standards that are yet untested. However, they also face the parallel challenge of undue political influence from trade partners and neighbouring regions. The author's analysis of Central Asian states' situation as energy producers in an unregulated international energy regime will ultimately offer suggestions for more equitable and efficient regulation of world energy markets.
18) Jêdrzej Górski in the contribution titled 'Central and Eastern Europe, Group 16+1 and One Belt One Road: The case of 2016 Sino-Polish Comprehensive Strategic Partnership' discusses the China's co-operation with the Central and Eastern European countries (CEECs) in the G16+1 format which first emerged in December 2011 when the PRC and Poland signed strategic-partnership declaration, and was formalised in April 2012. The obvious purpose of the G16+1 is to pave the way for the development of land components of the OBOR known as the SREB. Poland, thanks to its geographical situation, is predestined to be the SREB's hub bridging land transportation routes coming to Europe via Eurasian Economic Union and from the South via Balkans. The author notices, however, that as of late 2017, the prospects for the development of SREB's hub in Poland look uncertain because of external forces for which such scenario is not convenient, particularly for the EU/Germany for which the CEE region has been essential as the industrial hinterland. Moreover, despite upgrading Sino-Polish relations to comprehensive strategic partnership in June 2016, the actual stance of the Polish government on the SREB project has been rather averse in the light of Poland's allegiance to the idea of the Trans-Pacific alliance and strong interest in the US-led Three Seas Initiative (Trimarium) directly competing with the G16+1 project.