(BRI) AND I NTERNATIONAL DISPUTE RESOLUTION Diego Meja-Lemos - - PowerPoint PPT Presentation

THE BELT AND ROAD INITIATIVE (BRI)

AND

INTERNATIONAL DISPUTE RESOLUTION

Diego Mejía-Lemos National University of Singapore Faculty of Law

Typology of BRI Disputes

Commercial

Long-term multi-contract, multi- party disputes, construction and infrastructure sectors (corporate, M&A, project finance, maritime, trade disputes)

US$900bn in projects planned or already underway HKIAC (in 2015 increase in number and amount of disputes between PRC and BRI Participating state parties) Typology literature: [Wang 2017] [Zhao 2018 (RoL)]

Investor- State

Bilateral Investment Treaties (BITs) Multilateral Investment Treaties (MITs) 61 BITs exist between China and BRI participating states Of the above states, 49 are parties to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)

Chinese BIT programme (commenced in 1980s; Chinese BITs entered into between the 1980s and the mid-1990s (no umbrella clauses, disputes relating to the compensation amount for expropriation); post-2000s: Bosnia and Herzegovina, Iran, Myanmar, South Africa and Uzbekistan (contain umbrella clauses/ISDS in relation to any dispute relating to the investment)

Inter-State

WTO

Other fora for non-WTO (eg, for certain BRI participating states: Court of the Eurasian Economic Union)

Typology of BRI Dispute Settlement Fora/Methods

Litigation

International Commercial Courts

China’s Supreme People’s Court: China International Commercial Court [Shenzhen CICC (Maritime Road) and Xi’an CICC (Belt)]

PRC Opinion 7 re BRI dispute resolution; PRC Guideline to establish a mechanism to resolve BRI trade and investmen disputes; Singapore’s International Commercial Court and Dubai’s International Financial Centre (DIFC) as ‘models’

Enforcement: Convention of 30 June 2005 on Choice of Court Agreements (Hague Conference on Private International Law; entered into

force 1 October 2015; signed by PRC on 12 Sept 2017, not yet ratified)

ADR

Mediation

ICC Guidance on Mediation of Belt and Road Disputes. Singapore International Mediation Centre (SIMC)/China Chamber of International Commerce Mediation Centre (CCOIC) MoU

International Arbitration

Global Institutions Chinese Institutions

Institutional (ICC, LCIA, HKIAC, SIAC, etc) Ad Hoc (UNCITRAL Rules, administered by, eg, PCA) China International Economic and Trade Arbitration Commission (CIETAC) Shenzhen Court of International Arbitration (SCIA) BRI-specific: Silk Road Arbitration Centre in Xi’an Wuhan Arbitration Centre Belt & Road Arbitration Court Enforcement: 1958 New York Convention (only BRI participating states not parties: Ethiopia, Iraq, Maldives, Timor-Leste, Turkmenistan, Yemen); ICSID Convention

Selected References

Wang 2017 Dahlan 2018 Zhao 2018 ‘The Belt and Road Initiative in quest for a dispute resolution mechanism’ 25(1) Asia Pacific Law Review (2017) ‘Dimensions of the New Belt & Road International Order: An Analysis of the Emerging Legal Norms and a Conceptionalisation of the Regulation of Disputes’ 9 Beijing Law Review 87 (2018) ‘Development of International Dispute Resolution under the Belt and Road Initiative’ in Zhao, Development of International Dispute Resolution under the Belt and Road Initiative (CUP, 2018)