Executive Summary摘要
这封公开信是对大西洋两岸贸易投资伙伴关系（TTIP）和中国最大的国有企业中国石油海外政策研究的成果。这封信分为三个主要部分。首先介绍了中石油写这封信的动机。作为最重要的一点，TTIP对包括中石油在内的所有海外投资者都有重要影响。第二部分分析了中国石油的投资政策，特别是对欧洲的海外投资。中石油的根本利益不与东道国冲突。第三部分详细分析了TTIP规则，特别是“监管权”和“透明度”规则。为了获得监管权，中石油认为，措辞宽泛而含糊，可能会产生限制外部投资的假象。在TTIP下，准确的规定有助于实现可持续发展和贸易鼓励的平衡。对于透明度规则，中石油认为，TTIP应分析强制性和自愿的透明度项目，制定切实可行的规则，在利益相关者之间达到平衡，以保护东道国的利益，以及海外投资者的利益。
The open letter was an outcome of researches on the Transatlantic Trade and Investment Partnership (TTIP) and the overseas policies of PetroChina, the biggest state-owned enterprise of China. This letter is pided into three main parts. First it introduces the motivation of PetroChina to write this letter. As the most important BIT, TTIP has an important influence on all overseas investors, including PetroChina. The second part analyzes investment policy of PetroChina, especially its overseas investment in Europe. The fundamental interests of PetroChina are not conflict with host countries. In the third part, TTIP rules, specifically “the right to regulate” and “transparency” rules are analyzed in details. For the right to regulate, PetroChina thinks that the broad and vague wording might cause an illusion of limiting investments from the outside world. Accurate stipulations could help the sustainable development and trade encouragement reach a balance under TTIP. For the transparency rule, PetroChina holds a position that, TTIP should analyze the mandatory and voluntary transparent items and stipulate practicable rules to reach a balance among stakeholders, so as to protect the interests of host countries, and well as the interests of overseas investors.
Table of Contents
1. Introduction: Why is PetroChina writing this letter? 3
2. Overview of PetroChina and its overseas investment 8
2.1 Investment policy of PetroChina in “go global” era 8
2.2 PetroChina’s overseas investment in Europe 11
3. Impact of specific TTIP rules on foreign investors 14
3.1 “Right to regulate” rule and investment protection 14
3.1.1 For or against: a developed country position 14
3.1.2 The interpretation of ‘the right to regulate’ 18
3.1.3 The growing importance of public and social interests 21
3.2 “Transparency” rule and investment protection 28
3.2.1 “Transparency” rule in ISDS under TTIP 28
3.2.2 Development of investment court system under TTIP 32
3.2.3 Less transparency or more: concerns of foreign investors 33
4. Conclusion and Suggestion 35
Dear European Commission,尊敬的欧盟委员会：
本公开信旨在表达中国石油天然气股份有限公司（“中国石油”）对美国（美国）和欧盟（欧盟）之间的跨大西洋贸易投资伙伴关系（TTIP）的关注。过去几年，美国和欧盟在发展贸易和多边经济增长方面取得了重大进展。TTIP是中国第一大和第二大贸易伙伴之间正在谈判的双边贸易和投资协议。2011年，中国、美国和欧盟占世界国内生产总值（GDP）的一半，因此，中国和国有企业的担忧是绝对有效的。
This open letter is intended to express the concerns of PetroChina Company Limited (“PetroChina”) about the Transatlantic Trade and Investment Partnership (TTIP) between the United States (US) and the European Union (EU). Over the last few years, significant progress has been made by the US and the EU to develop trade and multilateral economic growth. TTIP is a bilateral trade and investment agreement which is under negotiation between the first and the second largest trading partners of China. In 2011, China, the US and the EU accounted for half of the world’s Gross Domestic Product (GDP) ; therefore, the concerns of China and the state-owned enterprises are definitely valid.
1. Introduction: Why is PetroChina writing this letter?
TTIP is a proposed trade agreement between the EU and the US, with the aim of promoting trade and multilateral economic growth. On March 12, 2013, the European Commission officially authorized a formal negotiation for agreement of TTIP. According to data released by the World Bank in 2011, the EU and the US account for about a third of the world’s GDP, a third of the world trade volume, and their mutual investments reach up to 3.7 trillion. If TTIP agreement is reached, it will become the world’s largest Free Trade Agreement (FTA): tariffs between the EU and the US will drop to zero, covering the one-third of world trade volumes, and accounting for half of the global GDP. To a large extent, TTIP will change the world trade rules, and industry policies and standards. It will also challenge the emerging world, especially the potential union among Brazil, Russia, India, China, and South Africa (BRICS).
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4. Conclusion and Suggestion
Since the outbreak of the international financial crisis in 2008, the world economy and international investment situation changed a lot. One of the major features is that emerging countries’ outward investment increased greatly. In the past, developed countries always acted as home countries and developing countries always acted as host countries, and investment flowed unilaterally. Nowadays the world investment pattern is such that developed and developing countries invest mutually.
The rise of emerging economies and the rapid development of foreign investment are changing the world’s economic and political situation and the flow of FDI. Emerging countries, economies and developed countries are all re-examining their positions in international investment activities, to balance the economic interests when acting as both capital-exporting and capital-importing countries. Changes in the international investment situation also directly impact on emerging countries, developed countries and non-governmental organizations (NGOs) regarding their participations in the stipulation of FDI treaties, as well as their expectations of the treaties’ implementations.
China is now one of the biggest recipients of foreign investment in the world. In light of China’s rise in the foreign investment sphere this may affect its demands in establishing bilateral investment agreement with other countries or unions. What is increasingly likely is that China is preparing itself and its investors abroad for negotiating bilateral investment agreement with the EU. China’s growth as an exporter of FDI in the last two decades is reflected in a pattern of investment practices. Most investment is involved with state-owned enterprises abroad. PetroChina committed itself to expanding the scale of international oil and gas trade in order to build PetroChina into a multinational company with strong competitive power. It is important for PetroChina to show a keen interest in the BITs between EU and US.
In the perspective of EU committee, TTIP focuses not only on principles that govern domestic regulations of the parties and their mutual relationships, but also have a great contribution to promote and improve international standards which make TTIP be a model to some extent. As emphasized by the EU committee, “a strong competition chapter in TTIP could serve an example that other countries could follow” . “We also believe that agreeing rules on certain areas could help us project our shared values more globally and contribute, to the extent possible, to the development of future global rules and standards”
Since 2006, the EU has negotiated FTAs with countries, including South Korea, Singapore, Colombia, Peru, Ecuador, Ukraine, Georgia, Moldova, and Canada. The treaty concluded by these countries is the Comprehensive Trade and Economic Agreement (CETA). Besides, other free trade agreements negotiated with India, Malaysia, Vietnam, Thailand, Japan, and the USA are still ongoing. China might be the next target of negotiation for BIT. Therefore, a keen interest in TTIP is beneficial to the formulation of FDI strategy for Chinese investors and preparation of BIT for Chinese government. The aim is to convince the EU committee to modify the provisions of the draft context of TTIP and build a solid balance of interests between investors and host states in the TTIP and other BITs, which is in accord with the interest of PetroChina. This attributes to not only its stated-owned characteristics but also the Chinese value of Confucian ideology: “the golden mean”. It has become an important rule for Chinese people to treat natural, social and human relationship in an "impartial" and "moderate" manner when resolving problems. It is evidently reflected in the process of foreign investment for the Chinese investors to solve problems in a peaceful, mutually respectful, and pragmatic way.
TTIP sets high-standard rules to build an international investment model. The “right to regulate” and “transparency” rules are major concerns of PetroChina. For the right to regulate, the rule itself is all good, but the broad and vague wording might cause an illusion of limiting investments from the outside world. Only the sustainable development and trade encouragement reach a balance under the right of regulate rule of TTIP, the treaty itself can finally be regarded as a successful BIT. From the perspective of PetroChina, in the process of international overseas investment, how to reduce risks by increasing transparency is an increasingly important topic related to corporate social responsibilities. PetroChina holds a position that, according to the demands of different stakeholders, TTIP should analyze the mandatory and voluntary transparent items and stipulate practicable rules to reach a balance among stakeholders, so as to protect the interests of host countries, and well as the interests of overseas investors.
Currently the world economy is in a recovery and adjustment phase. Many countries in the world are further expanding foreign trade and foreign investments, making full use of the international market to drive their domestic economies and development. Integration and regionalization of the world economy is deeper. In this context, the European Union and the United States are actively adjusting foreign investment policies, to amend their international investment rules, and better balance the rights and obligations of the host countries and multinational companies. As an emerging superpower of outward investment and the second largest capital importing country, China also faces problems such as how to adjust their traditional position of host country, how to better protect the safety of China's overseas investment and how to manage the domestic economy of China. As one of the biggest SOEs in China, the interests of PetroChina conform to that of China. PetroChina would appropriately strengthen the social responsibilities and contribute to the host countries. The EU and the US should, in conjunction with China, stipulate bilateral investment treaties and multilateral investment treaties. These actions could help countries to expand foreign investment activities, reduce political resistance, protect the social security of host countries, and finally protect the interests of all countries.
Bibliography
Ackhurst, K., Nattrass, S., & Brown, E. (2016). CETA, the Investment Canada Act and SOEs: A Brave New World for Free Trade. ICSID Review,31(1), 58-76.
Apoteker, T. (2014). Chinese investment in the greater Europe zone. In China and the EU in Context (pp. 44-80). Palgrave Macmillan UK.
Apoteker, T., Barthélémy, S., & Lunven, S. (2013). EU-China FDI in the 21st century: Who is ready for a “win-win” strategy?. In conference on EU and emerging powers, European Parliament, Brussels, April (pp. 29-30).
Awojobi, A. F. (2015). Confidentiality and third party participation in international investor-state arbitration (Doctoral dissertation, University of Cape Town).
Berger, A. (2008, November). China’s new bilateral investment treaty programme: Substance, rational and implications for international investment law making. In American Society of International Economic Law Interest Group 2008 conference in Washington, DC, November (pp. 14-15).
Berger, A. (2008). China and the Global Governance of Foreign Direct Investment–The Emerging Liberal Bilateral Investment Treaty Approach.German Development Institute Discussion Paper, (10).
Bishop, D. (2014). Investor–State Dispute Settlement Under the Transatlantic Trade and Investment Partnership: Have the Negotiations Run Aground?.ICSID Review, siu023.
Calamita, N. J. (2014). Dispute settlement transparency in Europe’s evolving investment treaty policy. The Journal of World Investment & Trade, 15(3-4), 645-678.
Carmody, M. (2016). Overturning the Presumption of Confidentiality: Should the UNCITRAL Rules on Transparency Be Applied to International Commercial Arbitration. Int'l Trade & Bus. L. Rev., 19, 96.
Casarini, N. (2006). The evolution of the EU-China relationship: from constructive engagement to strategic partnership. Paris, France: European Union Institute for Security Studies.
Chi, M. (2015). The ‘Greenization’of Chinese Bits: An Empirical Study of the Environmental Provisions in Chinese Bits and its Implications for China’s Future Bit-Making. Journal of International Economic Law, 18(3), 511-542.
Congyan, C. (2009). China–US BIT negotiations and the future of investment treaty regime: a grand bilateral bargain with multilateral implications. Journal of International Economic Law, 12(2), 457-506.
Diamond, S. F. (2003). The'PetroChina Syndrome': Regulating Capital Markets in the Anti-Globalization Era.
Dreyer, I., & Erixon, F. (2008). An EU-China trade dialogue: a new policy framework to contain deteriorating trade relations. ECIPE Policy Brief, 3.
de Graaff, N. (2014). Global Networks and the Two Faces of Chinese National Oil Companies. Perspectives on Global Development and Technology, 13(5-6), 539-563.
Du, M. (2016). The Regulation of Chinese State-owned Enterprises in National Foreign Investment Laws: A Comparative Analysis. Global Journal of Comparative Law, 5(1), 118-145.
Elliott, K. (2016). TPP Risks and TTIP Opportunities: Rules of Origin, Trade persion, and Developing Countries. CGD Policy Paper. Washington: Center for Global Development.
Erixon, F., Messerlin, P., & Sally, R. (2008). China's Trade Policy Post-WTO Accession: Focus On China-EU Relations. European Centre for International Political Economy (ECIPE) Working Paper.
Feldman, M. (2014). Improving the International Law and Policy Regime: Options for the Future, by Karl P. Sauvant & Federico Ortino.
Fry, J. D., & Repousis, O. G. (2015). Towards a New World for Investor-State Arbitration through Transparency. NYUJ Int'l L. & Pol., 48, 795.
Gerstetter, C., & Meyer-Ohlendorf, N. (2013). Investor-state dispute settlement under TTIP–a risk for environmental regulation?. Heinrich Böll Stiftung TTIP Series.
Henckels, C. (2016). Protecting Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP. Journal of International Economic Law, 19(1), 27-50.
Henckels, C. (2012). Indirect expropriation and the right to regulate: revisiting proportionality analysis and the standard of review in investor-state arbitration.Journal of International Economic Law, 15(1), 223-255.
Huaqun, Z. (2014). Balance, Sustainable Development, and Integration: Innovative Path for BIT Practice. Journal of International Economic Law, 17(2), 299-332.
Klager, R. (2014). Impact of the TTIP on Europe's Investment Arbitration Architecture, The. ZDAR, 39, 68.
Knahr, C., & Reinisch, A. (2007). Transparency versus confidentiality in international investment arbitration–the Biwater Gauff compromise. The Law & Practice of International Courts and Tribunals, 6(1), 97-118.
Krajewski, M. (2014). Modalities for investment protection and Investor-State Dispute Settlement (ISDS) in TTIP from a trade union perspective. Available at SSRN 2519995.
Krajewski, M., & Kynast, B. (2014). Impact of the Transatlantic Trade and Investment Partnership (TTIP) on the Legal Framework for Public Services in Europe. Available at SSRN 2576079.
Kriebaum, U. (2014). FET and Expropriation in the (invisible) EU Model BIT.The Journal of World Investment & Trade, 15(3-4), 454-483.
Martins, A. M. D. S. (2016). Challenges to Transparency and Ethics in Alternatives to Arbitration in the Realm of International Investments. Available at SSRN 2778214.
Meunier, S. (2014). pide and conquer? China and the cacophony of foreign investment rules in the EU. Journal of European Public Policy, 21(7), 996-1016.
Mellske, R. (2015). For Greater Certainty: Calibrating Investment Treaties to Protect Foreign Investment and Public Health. Md. J. Int'l L., 30, 82.
Mollestad, C. N. (2014). See No Evil? Procedural Transparency in International Investment Law and Dispute Settlement. Procedural Transparency in International Investment Law and Dispute Settlement (October 29, 2014). PluriCourts Research Paper, (14-20).
Moreira, S. (2013). Learning from Failure: China’ s Overseas Oil Investments. Journal of Current Chinese Affairs, 42(1), 131-165.
Nicolas, F. (2014). China’s direct investment in the European Union: challenges and policy responses. China Economic Journal, 7(1), 103-125.
OECD (2004), “"Indirect Expropriation" and the "Right to Regulate" in International Investment Law”, OECD Working Papers on International Investment, 2004/04, OECD Publishing.
Ortino, F. (2016). Defining Indirect Expropriation: The TTIP Approach and the (Elusive) Search for ‘Greater Certainty’. King's College London Law School Research Paper, (2016-17).
Pupolizio, I. The Right to an Unchanging World. Indirect Expropriation in International Investment Agreements and State Sovereignty.
Rogers, C. A. (2006). Transparency in International Commercial Arbitration.Kansas Law Review, 06-10.
Ruscalla, G. (2015). Transparency in International Arbitration: Any (Concrete) Need to Codify the Standard?. Groningen Journal of International Law, 3(1).
Sacerdoti, G. (2014). Investment protection and sustainable development: key issues. Bocconi Legal Studies Research Paper, (2445366).
Schill, Stephan W. "Tearing down the Great Wall: The new generation investment treaties of the People's Republic of China." Cardozo J. Int'l & Comp. L. 15 (2007): 73
Schill, S. W., & Djanic, V. (2016, June). International Investment Law and Community Interests. In Society of International Economic Law (SIEL), Fifth Biennial Global Conference, Online Proceedings, Working Paper (No. 2016/01).
Schill, S. W. (2014). Editorial: Five Times Transparency in International Investment Law. The Journal of World Investment & Trade, 15(3-4), 363-374.
Shan, W., & Wang, L. (2015). The China–EU BIT and the Emerging ‘Global BIT 2.0’. ICSID Review, 30(1), 260-267.
Spence, D. B. (2011). Corporate social responsibility in the oil and gas industry: The importance of reputational risk. Chi.-Kent L. Rev., 86, 59.
Tentori, D., & Zandonini, M. (2014). The Future of the Transatlantic economic relationship: opportunities and Challenges towards the TTip (No. 35). Transworld Working Papers.
Titi, C. (2015). International Investment Law and the European Union: Towards a New Generation of International Investment Agreements. European Journal of International Law, 26(3), 639-661.
Van Harten, G. (2015). Key Flaws in the European Commission’s Proposals for Foreign Investor Protection in TTIP. Osgoode Legal Studies Research Paper, (61).
Van Harten, G. (2015). Foreign Investor Protection and Climate Action: A New Price Tag for Urgent Policies. Osgoode Legal Studies Research Paper, (66).
Venhaus, M. (2015). An unequal treaty–TTIP and inequality in Europe. Working Paper 01, Berlin Forum on Global Politics (BFoGP).
Wenhua, S. (2002). International Law of EU Investment in China, The.Chinese J. Int'l L., 1, 555.
Xiao, J. (2015). How can a prospective China–EU BIT contribute to sustainable investment: in light of the UNCTAD Investment Policy Framework for Sustainable Development. The Journal of World Energy Law & Business, jwv033.
Zhang, H., & Van Den Bulcke, D. (2014). China’s direct investment in the European Union: a new regulatory challenge?. Asia Europe Journal, 12(1-2), 159-177.
Zucchermaglio, S. The UNCITRAL Rules on Transparency in Investor-State Arbitration: a Critical Perspective.