Despite the recent volatility that led many to spell it out November as the ‘bloodiest’ month for hedge money, the sector is well located to take advantage of the current turmoil. He belives, “the solution requires the raising of fresh capital and the offering of impaired property to investors who’ll be capable of work them through bankruptcies or restructuring,” he said. 72%, while the MSCI World Index was down -2%. Outside distressed assets, there’s also attractive opportunities in several traditional investment areas however, not on a standalone basis.
76 Could, for example, a Lithuanian buyer rely on the BIT between China and Germany from 2003 to invoke the jurisdiction of the ICSID Centre for other matters than the amount of compensation after expropriation? Two decisions of ICSID arbitral tribunals78 are particularly relevant in this framework: Maffezini v Kingdom of Spain79 and Plasma Consortium Ltd.
Thus, the recent case-law of ICSID tribunals demonstrates even though the most-favoured-nation clause was put on dispute quality procedures, this application was limited by rules on treatment. But they did not use the most-favoured-nation clause to substitute the consent by the particular condition to ICSID jurisdiction as required by Article 25(1) of the ICSID Convention. It appears, therefore, quite improbable an ICSID tribunal encourage a case of a Lithuanian investor relying on the most-favoured-nation clause and invoking ICSID jurisdiction.
Moreover, the abovementioned decisions concerned most-favoured-nation clauses that were worded in different ways from the most-favoured-nation clause in the BIT between China and Lithuania. The particular most-favoured-nation clauses didn’t limit the most favourable treatment to the certain area of reasonable and equitable treatment, as the Little bit between Lithuania and China will. As China is accepting the jurisdiction of the ICSID centre in an increasing number of BITs, the ICSID Convention can be increasingly important for investment disputes relating to China.
The first state of a Chinese investor registered on 12 February 2007 will be just the start of ICSID disputes with Chinese participation. As opposed to the ICSID Centre, MIGA has already been actively involved with resolving investment disputes in China by mediating disputes between foreign traders and the Chinese government.
The exact range of MIGA’s role in settling investment disputes in China is unknown because the mediation services are offered on a private basis and MIGA publishes only chosen cases. As far as China is concerned, MIGA has published two situations. Both concern disputes between China and foreign traders over investment projects covered by insurance by MIGA which were solved amicably after MIGA became included. China’s accession to the WTO in 200193 also experienced implications for the international law regime relating to international investment in China. Investors can pressure their home governments97 to initiate proceedings and they may reap the benefits of rulings against China.
For example, the beneficiaries (depending on the outcome) of the current WTO dispute over China’s tax on imported car parts between China, the European Communities, Canada as well as the United States98 may also be international investors in China. This WTO dispute challenges Chinese regulations that require the same tariff for vehicles that contain a certain amount of imported automobile parts as for complete imported vehicles. Bilateral investment regulation plays a crucial role for Chinese investors overseas and foreign traders in China as it is the most crucial source for significant obligations of China and the respective third state in regards to to international investment regulation.
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The bilateral investment regulation relating to China has transformed during the last years due to China’s economic change from a country getting FDI to a country with outward investment. This development has not only influenced the amount of Chinese BITs, but also their content. The financial transformation resulted in a new generation of Chinese BITs in the beginning of the 21st century. The brand new generation of Chinese BITs has two features. First, they contain asymmetric commitments.
China assumes fewer responsibilities than its particular treaty partner. Second, they are decided by a relatively quick, but cautious approximation to modern international standards and also to international arbitration still. These characteristics can be best illustrated with a closer go through the arbitration and national treatment clause in Chinese BITs. The typical-newly concluded-Chinese BIT makes the Chinese consent to the jurisdiction of an international arbitral tribunal subject to two conditions.