Study On Legal Issues Of Application Of Bits Between China And Foreign Countries To Hong Kong And Macao Special Administrative Regions

Bilateral investment treaties,as the legal weapon to protect overseas investments,play an irreplaceable and important role in protecting the overseas investments of chinese enterprises and individuals.at present,china’s overseas investments have increased by a large margin each year.Therefore,china has signed a large number of bilateral investment treaties with other countries.There is one issue of great concern to the arbitration of this dispute: whether bits between china and foreign countries are applicable to hong kong and macao special administrative regions under the “one country,two systems”?As Hong Kong and Macao SARs also signed bilateral investment treaties with other countries,the application of BITs between China and foreign countries on Hong Kong and Macao SARs is even more complicated and confusing.It can be seen that Hong Kong and Macao SARs have also independently signed a certain number of bilateral investment treaties on their own behalf.The issue on the basis of this is how the BITs signed by China will apply to Hong Kong and Macao Special Administrative Regions?In the case of BITs signed by China and Hong Kong and Mucao SARs with the same country,how to reconcile it if there is a conflict is a problem.This article aims to focus on this issue.Specifically,given the high degree of autonomy in Hong Kong and Macao SARs,most of the BITs signed by China did not specify the application to Hong Kong and Macao SARs.Instead,they adopted official exchange of letters in their practice to solve them.Such measures are not universal applicability,on the other hand,it also increases the uncertainty of application of BITs between China and foreign countries.In view of this,the purpose of this paper is to conduct a more detailed study of how BITs signed by China apply to Hong Kong and Macao SARs specifically,including the definition of investors and geographical scope of BITs,and the stipulations on elaborating the Basic Law of Hong Kong and Macao Special Administrative Regions and related international conventions and the link between them.The full text details Hong Kong and Macao SARs’ high degree of autonomy and the status of the mainstay of the international body as a clue throughout,trying to analyze the specific legal issues of BITs between China and foreign countries to Hong Kong and Macao SARs.This article only hopes to analyze how Hong Kong and Macao SARs make full use ofthe major legal challenges that China has established or will soon establish with regard to investment protection agreements with the relevant countries.Make full use of the system of international investment protection established by China and related countries and provide feasible suggestions and countermeasures.The full text is divided into the following five parts except for the introduction and conclusion:The first part takes the two cases that BITs apply to Hong Kong and Macao SARs as an entry point,combined with the status of the bilateral investment treaties currently signed by China,clarifies the basic situation of the application of BITs to Hong Kong and Macao SARs.Mainly explore whether the current BITs signed by China can apply to Hong Kong and Macao or exclude?Are there any BITs that have express provisions which apply to Hong Kong and Macao SARs or not? Through the combing of two cases of BITs applying to Hong Kong and Macao and the analysis of the ideas of the case ruling,this paper concludes the problems and dilemmas which Hong Kong and Macao are facing.The second part of the study is how the identification of investors and geographical scope can apply to Hong Kong and Macao issues.Through the common definition of BITs for investors and the applicable geographical scope,BITs determine whether BITs between China and foreign countries are suitable for investors in Hong Kong and Macao or Hong Kong and Macao SARs.Pave the way for discussing the application of substantive law.The third part studies the linkages between BITs signed by China when applying to Hong Kong and Macao Regions and the Basic Law of the SARs,which is the focus of the whole thesis.First of all,under the authority of the Central Government,the Basic Law of the Hong Kong and Macao Special Zones stipulates that the Hong Kong and Macao Special Administrative Regions may sign and carry out the relevant investment protection agreements separately with other countries.It involves the legal basis for the right of contracting under“one country,two systems” and the international status of Hong Kong and Macao Special Administrative Regions in international law.Clarify how BITs will make better connection with the Basic Law under such circumstances.Second,the relevant international conventions also stipulate the application of treaties.In the event of a conflict between the domestic law of our country and the provisions of international conventions,what should we do?Finally,this article analyze the above problems and try the best to clarify the issue of how the Basic Law of Hong Kong and Macao SARs on docking with foreign BITs and international conventions.The fourth part studies the other issues that BITs applied to Hong Kong and Macao SARs.Including the conflict and coordination between Hong Kong’s and Macao’s BITs and Chinese BITs,the legal status of supplementary official exchanges produced by the application of BITs between China and foreign countries to Hong Kong and Macao SARs.The purpose of this part is to clues the origins of contracting power and in light of its practice widely accepted by the international community.This part attempts to clarify the issue of the bilateral investment agreement between Hong Kong and Macao SARs and the conflicts between them.In the fifth part,after combing and summarizing the problems arising from the application of BIT to Hong Kong and Macao Special Administrative Regions,the author puts forward some suggestions on the status and practice of the bilateral investment treaties signed between China and Hong Kong and Macao at present.Following the principle of improving domestic legislation and linking domestic legislation with international rules,as the international investments are increasing,the corresponding legal mechanisms should be perfected as soon as possible so as to ensure the direct competitiveness of Hong Kong and Macao SARs in attracting foreign investments.At the same time,we can protect Hong Kong and Macao SARs’ overseas investments better.