Abstract
Abstract: As a result of the development of the “One Belt One Road†and “Stepping-out†strategy for multinational enterprises, China’s outward directed investments have grown rapidly. During the transformation period from a capital-importing country to a capital-exporting country, issues of insufficient investment protection laws on China’s outward investment have surfaced. To examine major investment risks, investment dispute settlement mechanisms, and legal barriers of China’s multinational enterprises in ASEAN States, this study selects typical state-owned enterprises and private companies among 300 Guangdong businesses, which invested in ASEAN via data analyses, surveys, and field studies. The findings of this research provide a reference for the investment protection and for the launching of investment litigation of these Chinese multinational enterprises whenever it is required.
References
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Ibid Page 4.
See HAN Bin and Wang Yongzhong, China Outward Investment Report third quarter of 2015 (translation added), pp30-31 (Beijing: China Social Science Press,2016 ).
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Except for China-Brunei BIT that signed on 17 November, 2000., nine BIT are in force, which are China-Singapore BIT (21 Nov. 1985), China-Malaysia (11 Dec. 1988), China-Philippines BIT (20 July 1992), China-Vietnam BITs (2 Dec. 1992), China-Laos BIT (31 Jan. 1993), China-Indonesia BIT (18 Nov. 1994), China-Cambodia BIT (19 July 1996), China-Myanmar BIT (12 Dec. 2001). See available at http://investmentpolicyhub.unctad.org/IIA/CountryBits/42.
See Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between the PRC and ASEAN, http://fta.miti.gov.my/mitifta/resources/auto%20download%20images/558b8bd29bd01.pdf
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See WANG Yongzhong and LI Xichen, “Features and Risks of China’s Investment in the OBOR Counties†(translation added) HAN Bin and Wang Yongzhong (eds.), China Outward Investment Report third quarter of 2015, pp41-42 (Beijing: China Social Science Press, 2016).
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See note 11.
For details, see Article 1 of Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between ASEAN and China, available at http://fta.mofcom.gov.cn/inforimages/200908/20090817113007764.pdf, and Article 1.1 of BITs (P.R.C.-Brunei, Cambodia, Laos, Indonesia, Philippine, Myanmar, Singapore, and Vietnam) and Article 1.3 of China-Thailand BIT. Business concessions include contractual rights such as those under turnkey, construction or management contracts, production or revenue sharing contracts, concessions, or other similar contracts and can include investment funds for projects. See footnote 2 of the ASEAN-China Investment Agreement.
Article 3(4) of Agreement on Investment and footnote to Article 1.
See 2014 Administrative Measures for Overseas Investments, http://www.mofcom.gov.cn/article/b/c/201409/20140900723361.shtml.The proportion of shares in control or management of Chinese MNEs is 10 percent. For detail, see Article 2 of 2006 Statistical System of Foreign Direct Investment, in Chinese, hzs.mofcom.gov.cn/accessory/201102/1297930121981.pdf.
LI Wenfang, ‘Guangken to list Thai rubber producer’, China Daily, (28 November 2016), available at http://www.chinadaily.com.cn/business/2016-11/28/content_27500097.htm. Also see CHEN Min, ‘Seizing opportunity and harvest the oversea investment-status and experiences of Guangken under the “stepping out†policy’ (translation added), 29 China Rubber (2013) at 18.
For detail please see company’s official website http://www.gdftc.com/en/about/about.asp?t=1 and 2016 short term financing report of Guangdong Guangxin Holding(translation added), available at https://shclearing.com/xxpl/fxpl/scp/201607/t20160728_170897.html.
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The subsidiaries in Vietnam include Midea Consumer Electric (Vietnam) Co.LTD and Midea Air-Conditioning Equipment (Vietnam) Co. LTD, http://www.midea.com/global/about_midea/major_facilities/Overseas_Facilties/201403/t20140319_74645.shtml and, the Annual Report of Midea Group 2015, available at disclosure.szse.cn/finalpage/2016-03-26/1202084987.PDF.
See introduction of the project from Country Garden Pacific View’s profile, available at https://cgpvforestcity.wordpress.com/about/.
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Xiao Jun, ’the ASEAN-China Investment Agreement, A Regionalization of China’s BITs’, FRONTIERS LAW. CHINA, 6 (2011) 2, at 249.
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Jun Xiao, ‘the ASEAN-China Investment Agreement, A Regionalization of China’s BITs’, FRONTIERS L. CHINA, 250, (2011) at pp241-58 The conditions for submitting to arbitration are that the submission of the disputes must be within three years of the time at which the investor becomes aware of a breach of an obligation under the Investment Agreement; a ninety days advance written notice to the host state shall be given by the disputing investor before submitting the claim to conciliation or arbitration.
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Article 10.2 of China-Philippine BIT and Article 7.4 of China -Malaysia BIT. China-Indonesia BIT.
BITs in this sections are Article 13.3 of China-Singapore BIT, Article 8.3 of China-Laos BIT, Article 9.3 of China-Indonesia BIT, Article 8.3 of China-Vietnam, in comparison with 1985 China-Thailand BIT, the parties of which did not grant the access to the ISD
Article 10.3 of BIT (China-Philippine).
Article 9.3 of BIT (China-Brunei).
Article 13.5 of BIT (China-Singapore) and Article 7.4 of BIT (China-Malaysia).
Karl P. Sauvant and Michael D. Nolan, 18’China’s Outward FDI and International Investment Lawâ€, Journal of International Economic Law,’ at 932.Also see SHAN Wenhua and et al. International Protection of China’s Outward Energy Investment- Survey and Regional Research (translation added) (Beijing: Tsinghua University Press 2014) at 46.
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See http://www.sinosure.com.cn/sinosure/english/English.html, last visited on 24 February 2017
SHEN Wei, ‘Liberalization and Pluralization of China’s protection standards in international investment treaties’ (translation added), 4Chinese Journal of Law (2015) Page 206.
Ten of these areas are included in this year’s ranking on the ease of doing business: starting a business, dealing with construction permits, getting electricity, registering property, getting credit, protecting minority investors, paying taxes, trading across borders, enforcing contracts and resolving insolvency.See World Bank Group, ’Doing Business 2016-Measuring Regulatory Quality and Efficiency’, A World Bank Group Flagship Report, 2016, 13th edition. p5, available at espanol.doingbusiness.org/~/media/.../DoingBusiness/...Reports/.../DB16-Full-Report.pdf, last visited on 5 February 2017
Available at https://www.miga.org/who-we-are, last visited on 8 March 2017.
Article 11 of the Convention Establishing the Multilateral Investment Guarantee Agency.
Wang Guiguo, ‘Investor-State Dispute Settlement in China’, Transnational Dispute Management, 5 (2011) page 7.
Karl P. Sauvant and Michael D. Nolan, “China’s Outward FDI and International Investment Lawâ€, Journal of International Economic Law, 18, (Nov. 2015) page 933.
Claudia Annacker, “Protection and Admission of Sovereign Investment under Investment Treatiesâ€, Chinese Journal of International Law Vol. 10. No.3, (2011), p531
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See note 15, at page 19.
Page 121 of Huawei Annual Report 2015.
Yao Meizhen, Section of articles of Yao Meizhen in Chinese. Yao Meizhen Anthology, (Wuhan: Wuhan University Pree, 2010), Page 33 and page 62.