Research On Core Legal Issues In China-U.S. BIT Negotiation

With the improvement of China’s economic power and international influence, China-U.S. Bilateral Investment Treaty(BIT) negotiation has been more and more concerned. The conclusion of China-U.S. BIT will not only contribute to the development of the investment environment, but also be conductive to the development of international trade. As for the continuous improvement of the degree of investment liberalization, states have put forward higher standard of the investment protection and treatment. United States is one of the earliest states that carry out pre-establishment national treatment. In this condition, China agreed with pre-establishment national treatment and negative list in the fifth round of China-U.S. Strategic and Economic Dialogue. Since it is the first time for China to adopt the pre-establishment national treatment and negative list, the negotiation of negative list will be the one of the concentrations of this negotiation. Secondly, as for the ambiguity of Fair and Equitable Treatment, the drafting of this provision will also be the one of the core issues. Thirdly, given the fact that China has lower standard of performance requirement compared to that of U.S., we will pay close attention to the drafting of Performance Requirement.All in all, based on the background of international BITs and the negotiation history of China-U.S. BIT, this paper will be focused on the Negative List, Fair and Equitable Treatment and Performance Requirement of China-U.S. BIT, so as to provide advises for the relevant provisions.This paper is divided into five parts:The first part gives an introduction of China-U.S. BIT negotiation, including the development trend of international BITs,the history of China-U.S. BIT negotiation and the core legal issues in the negotiation.The second part concentrates on the Negative List. From the prospect of Negative List and pre-establishment national treatment, Negative List and foreign investment management mode and the characters of negative-list system, it proposes to stipulate Non-Conforming Measures, Level of Government and the party’s right to take new non-conforming measures.The third part focuses on Fair and Equitable Treatment. Combined with the international treaty and arbitration experience, and based on the basic connotation of Fair and Equitable Treatment, i.e. fair judicial proceedings, transparency, good will, etc., it suggests to define the Fair and Equitable Treatment clearly and to avoid the ambiguity of the terms.The forth part focuses on Performance Requirement. It indicates that the different performance requirement commitments that China has made in WTO laws and bilateral treaties, and recommends that China had better take different strategies according to different types of terms.Finally, the fifth part reaches a conclusion of the whole paper: firstly, make recommendations on the negotiation of negative list; secondly, make a deep research on the Fair and Equitable Treatment and Performance Requirement and put forward some advises to these provisions.