Study On Definition Of Investment In International Investment Agreement

The definition of "investment" is the core issue of International Investment Agreement(called IIA for short), which directly delimits the scope of IIA, and constitutes the basis of application of substantive provisions and procedural provisions. The definition of "investment" in IIA, on the one hand, reflects the scope of protected investment from the home country and its investors, on the other hand, reflects the type of investment accepted by the host State based on its needs of economic development and regulatory capacity of foreign investment. There are many different definitions of investment in IIA, which can be divided into three modes of open asset-based、closed corporation-based and mixed definitions, the asset-based definition of investment covers the comprehensive and widest range of assets.Due to the historical inertia and the spread of investment liberalization, the definition of investment in the practice of International Investment Agreements and international investment arbitration both have showed a trend of enlargement. This article combs the definition of "investment" in International Investment Agreements to date and its generalization trend in practice, analyzes the causes of the expansion of the definition of investment and the negative influence, using the Research Methods of Literature Review 、 Historical Analysis 、 Case Analysis and so on. The broad definition of investment is in favor of the protection of the interests of investors, but excessively reduces the host State in the regulation space of foreign investment and damnifies its Economic Sovereignty, even may ultimately affects the healthy development of international investment law.In view of this, the latest U.S. Model Bilateral Investment Treaty(called BIT for short) and the BIT in some other countries have begun to increase restrictions on "investment", such as using the characteristics of investment in order to highlight the connotation of investment; Parts of the ICSID arbitral tribunal mean to clarify its jurisdiction, also have made some restrictive interpretations on "investment" through the objective criteria of Objectivism Interpretation Theory. Although the actual effect is confined, these restrictions and interpretation methods has played a good role to limit the scope of real "investment". Traditionally, the purpose of contracting IIA is "biased" which focuses on the investors’ side, while along with the transformation of the pattern of international investment, the "double-sided" objective taking into account the interests of investors and the economic sovereignty of the host State is the mainstream. The definition of investment has the function of limiting application of IIA, its content must conform to the purpose of IIA. Based on it, this article proposes methods to improve the definition of investment in IIA, and in particular through clearing investment characteristics, introducing the "exception not applying" to limit "investment", to balance the interests of investors and host State with the scope of investment. For China now is both the capital-exporting country and capital-importing country, the biggest innovation in this article is try to develop a definition of investment for China Model Bilateral Investment Treaty, to find a suitable location for China between the two needs of investing and attracting investment.