On 28 June 2021, China’s Ministry of Commerce ("MOFCOM") released the “Guidelines for Enterprises to Use Investment Treaties” (the "Guidelines", 企業利用投資協定參考指南). The Guidelines introduces for enterprises engaged in outbound investment the meaning and functions of investment treaties, the treatment, and protections for enterprises afforded by such treaties, the Investor-state Dispute Settlement Mechanism (ISDS), and the preparations that enterprises should make for the arbitration or the regular business operation.
Pursuant to the Guidelines, the overall process of arbitration for investment disputes may last for several years, usually involving proceedings such as case application, case acceptance, formation of an arbitral tribunal, the decision on jurisdiction, and substantive adjudication. And in some cases, the arbitral award may involve some extra proceedings such as being revoked or enforced. Enterprises may also opt to negotiate with the government of the host country to resolve their disputes.
The Guidelines provides some information about China's investment treaties to facilitate enterprises' access to such agreements. The investment treaties entered between China and other countries can be found in the column, “Bilateral Investment Protection Treaties”, on the website of the Department of Treaty and Law of the Ministry of Commerce, http://tfs.mofcom.gov.cn/article/h. The investment-related chapters of free trade agreements between China and foreign countries can be found on the website of China Free Trade Zone Services, http://fta.mofcom.gov.cn/.
Cover Photo by 堯智 林 (https://unsplash.com/@gundam) on Unsplash
Contributors: CJO Staff Contributors Team
