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Notes
- 1.
Asteriti (2016).
- 2.
UNATCD, Global Investment Trend Monitor, No. 38, <https://unctad.org/system/files/official-document/diaeiainf2021d1_en.pdf> accessed 16 April 2022.
- 3.
Western countries have achieved great theoretical achievements and made significant theoretical contributions in the process of exploring the “ecological civilization” theory. The development of interdisciplines in the name of ecology and the emergence of Green Politics together further consolidate these studies. In Chinese context, on the basis of drawing on the lesson of “treatment after pollution” and reasonably referencing the advanced experience of environmental rule of law in Western countries, China’s current “ecological civilization” theory is mainly based on the series discussions made by President ** is a theoretical innovation of the Marxist theory of the rule of law combining with China’s national conditions, and also new findings of the development of world civilizations and international sustainable development researches. More discussions can be found in the articles made by Prof. Zhongmei Lv.
- 4.
“Pursuing Sustainable Development in a Concerted Effort, To Build an Asia–Pacific Community with a Shared Future: Keynote Speech by H. E. ** President of the People’s Republic of China at the APEC CEO Summit (11 November 2021)” <http://m.cnr.cn/news/20211111/t20211111_525658010.html> accessed 12 November 2021.
- 5.
The environmental Kuznets curve (EKC) is a hypothesized relationship between various indicators of environmental degradation and per capita income. In the early stages of economic growth, pollution emissions increase and environmental quality declines, but beyond some level of per capita income (which will vary for different indicators) the trend reverses, so that at high income levels, economic growth leads to environmental improvement. This implies that environmental impacts or emissions per capita are an inverted U-shaped function of per capita income. See Stern (2008).
- 6.
For example, the China-Hong Kong CEPA Investment Agreement (2017) and the Israel-Japan BIT (2017).
- 7.
For example, the China-EU Comprehensive Agreement on Investment (CECAI) and the Austria-Kazakhstan BIT (2010).
- 8.
For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Agreement between the United States of America, the United Mexican States, and Canada (USMCA).
- 9.
For example, the Cambodia-Turkey BIT (2018), the ASEAN-Hong Kong, China SAR Investment Agreement (2017), the Colombia-United Arab Emirates BIT (2017), the China-Hong Kong CEPA Investment Agreement (2017), and the Israel-Japan BIT (2017).
- 10.
Crompton (Chemtura) Corp. v. Government of Canada, Award dated 2 August 2010, para. 123.
- 11.
Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits dated 3 August 2005, Part IV-Chapter B-Page 5. Methanex put forward a 4-criteria standard of proof for the USA to justify the validity of its environmental measure: (1) necessity; (2) proportionality; (3) the least restrictive of foreign investment; and (4) not constitute a disguised restriction on foreign investments.
- 12.
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Award dated 27 August 2008, para. 218.
- 13.
Glamis Gold Ltd. v. United States of America, Award dated 8 June 2009.
- 14.
Adel A Hamadi Al Tamimi v. Sultanate of Oman, ICSID Case No. ARB/11/33, Award dated 3 November 2015, para. 368.
- 15.
Peter A. Allard v. The Government of Barbados, PCA Case No. 2012–06, Award dated 27 June 2016, para. 249.
- 16.
Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award dated 30 August 2000, para. 111.
- 17.
S. D. Myers, Inc. v. Government of Canada, Partial Award dated 13 November 2000 (Merits), para. 221.
- 18.
Técnicas Medioambientales Tecmed v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award dated 29 May 2003, paras. 121–122.
- 19.
Viñuales (2019).
- 20.
See The National People’s Congress of the People’s Republic of China, “Comments and Suggestions on the Report on the Allocation and Use of Fiscal Funds for Ecological and Environmental Protection” <http://www.npc.gov.cn/npc/c30834/202001/7ed4c12ed52b4750b55092caddf1888b.shtml> accessed 16 April 2022; Ministry of Finance of the People’s Republic of China, “Report of The State Council on the Allocation and Use of Fiscal Funds for Ecological and Environmental Protection” <http://www.mof.gov.cn/zhengwuxinxi/caizhengxinwen/201912/t20191226_3450288.htm> accessed 16 April 2022.
- 21.
Jarrod Hepburn and Luke Eric Peterson, “China warned of possible investment treaty arbitration” (Investment Arbitration Reporter (IA Reporter), 06 March 2018) <https://www.iareporter.com/articles/china-warned-of-possible-investment-treaty-arbitration/> accessed 29 August 2021.
- 22.
“Keynote Speech by ** at the 15th Summit of the Conference of the Parties to the Convention on Biological Diversity” <http://news.cctv.com/2021/10/12/ARTIZ3sdwy5gtJJeS3fOYPJW211012.shtml> accessed 13 October 2021.
- 23.
Damien Charlotin, “Creation of Giant Panda Park prompts treaty-based arbitration against China” (IA Reporter, 15 January 2021) <https://www.iareporter.com/articles/china-faces-treaty-based-arbitration-claim-prompted-by-wildlife-conservation-measures/> accessed 29 August 2021.
- 24.
To avoid ambiguity, no matter what the specific differences might exist between “corporation” and “enterprise,” the term “corporation” is chosen in this article to refer to the kind of legal persons with transnational elements.
- 25.
“Statement by ** at the Leaders’ Summit on Climate” <http://www.gov.cn/xinwen/2021-04/22/content_5601526.htm> accessed 12 August 2021.
- 26.
For example, the United States has pledged to realize net-zero emissions by 2050, however, its emissions had already peaked as early as in 2007. See Center for Climate and Energy Solutions, “U.S. Emissions” <https://www.c2es.org/content/u-s-emissions/> accessed 12 August 2021. Japan has also made it in 2013.
- 27.
“Keynote Speech by ** at the 15th Leaders’ Summit of the Conference of the Parties to the Convention on Biological Diversity” <http://www.gov.cn/xinwen/2021-10/12/content_5642048.htm> accessed 20 October 2021.
- 28.
Notice by the State Council of the Action Plan for Carbon Dioxide Peaking Before 2030, No. 23 [2021] of the State Council, Part IV (3).
- 29.
Such as energy, transportation, industry, and circular economy. See “Pursuing Sustainable Development in a Concerted Effort, To Build an Asia–Pacific Community with a Shared Future: Keynote Speech by H.E. ** President of the People’s Republic of China at the APEC CEO Summit (11 November 2021)” <http://m.cnr.cn/news/20211111/t20211111_525658010.html> accessed 12 November 2021.
- 30.
Chinese scholar Danni Liang believes that the first major environmental protection legislation in China was enacted in 1989. See Danni Liang, “Environmental concerns and China’s international investment agreements” in Kate Miles (ed) Research Handbook on Environment and Investment Law (Edward Elgar 2019) 366.
- 31.
They are Nuclear Safety Law, Soil Pollution Prevention and Control Law, Environmental Protection Tax Law, Biosecurity Law, and Yangtze River Protection Law.
- 32.
They are Marine Environment Protection Law (Amendment 2017), Water Pollution Prevention and Control Law (2017 Revision), Atmospheric Pollution Prevention and Control Law (2018 Amendment), and Law on the Prevention and Control of Environment Pollution Caused by Solid Wastes (2020 Revision).
- 33.
They are Cleaner Production Promotion Law (2012 Amendment), Marine Environment Protection Law (Amendment 2017), Law on Environmental Impact Assessment (2018 Amendment), Circular Economy Promotion Law (2018 Amendment), and Law on Prevention and Control of Pollution from Environmental Noise (2018 Amendment).
- 34.
See MoEE, <https://www.mee.gov.cn/ywgz/zysthjbhdc/dcjl/202105/t20210506_831813.shtml> accessed 8 April 2022.
- 35.
The 2013 guideline is a departmental normative document, belonging to the category of comprehensive regulation for environmental protection.
- 36.
Nine areas have been enumerated: infrastructure, energy, transportation, industry, trade, finance, technology, standard, and climate change.
- 37.
The most frequently mentioned ones are the OECD Guidelines for Multinational Enterprises, the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the UN Global Compact, and the UN Guiding Principles on Business and Human Rights.
- 38.
Company Law of the People’s Republic of China (2018 Amendment), Article 5.
- 39.
China-Mauritius BIT (1996), Article 11.
- 40.
The same statement also appears in Chile-China FTA (2005) and China-Switzerland FTA (2013).
- 41.
Such consensus also appears in China-New Zealand FTA (2008), China-Switzerland FTA (2013), China-Korea FTA (2015), etc.
- 42.
Australia-China FTA (2015), Article 9.8.
- 43.
RCEP, Chap. 10, Annex 10B (Expropriation), 4.
- 44.
China-Costa Rica FTA (2010), Article 2 (1) (f).
- 45.
Id., Article 159 (2).
- 46.
Chapter 12 (Environmental Issues) contains the following articles: Context and Objectives, Multilateral Environmental Agreements and Environmental Principles, Promotion of the Dissemination of Goods and Services Favouring the Environment, Cooperation in International Fora, Bilateral Cooperation, Resources and Financial Arrangements, Implementation and Consultations, and Review.
- 47.
Id., Article 5.3.
- 48.
China-Turkey BIT (2015), Article 4.1.
- 49.
China-New Zealand FTA (2008), Preamble.
- 50.
Id., Chapter 14 (Cooperation), Article 177.
- 51.
Id., Annex 13 (Expropriation), 5.
- 52.
“The Contracting Parties recognize that it is inappropriate to encourage investment by waiving, relaxing, or otherwise derogating from domestic health, safety or environmental measures.” See Canada-China BIT (2012), Article 18.3.
- 53.
The agreement has not been ratified yet due to the dissension over some sensitive issues between China and the EU.
- 54.
The six articles are, in order: Right to regulate, Levels of protection, Dialogue and cooperation on investment-related environmental issues, Multilateral environmental agreements, Investment favoring green growth, as well as Investment and Climate Change.
- 55.
China has signed 148 IIAs in total, including 124 (107 in force) BITs and 24 (19 in force) TIPs. See UNCTAD, Investment Policy Hub, <https://investmentpolicy.unctad.org/international-investment-agreements/by-economy> accessed 3 December 2021.
- 56.
See Feng (2017).
- 57.
Liang (2019).
- 58.
See Viñuales (2009).
- 59.
See Fischer-Lescano and Teubner (2004).
- 60.
See Joubin-Bret (2016).
- 61.
Announcement No. 59 [2019] of MoC, Announcement of the Ministry of Commerce on Repealing Certain Regulatory Documents <http://www.mofcom.gov.cn/article/b/f/201912/20191202925578.shtml> accessed 15 April 2022.
- 62.
See MoC, Catalogue of Industries for Guiding Foreign Investment (2007 Revision), <http://www.mofcom.gov.cn/aarticle/b/f/200711/20071105248462.html> accessed 18 April 2022.
- 63.
See Development and Reform Commission of Hainan Province, The Industry Access Prohibition and Restriction Catalog of Hainan Province (2019), <http://plan.hainan.gov.cn/sfgw/0400/201909/92e94bc2d2324268bd5bf23c797ed6db.shtml> accessed 18 April 2022; Department of Ecology and Environment of Hainan Province, The Ecological Environment Access List of Hainan Province (2021), <http://hnsthb.hainan.gov.cn/xxgk/0200/0202/hjywgl/hjyxpj/202110/t20211027_3081935.html> accessed 18 April 2022.
- 64.
“Keynote Speech by ** at the Opening Ceremony of the Fourth China International Import Expo” <http://www.gov.cn/xinwen/2021-11/04/content_5648892.htm> accessed 12 November 2021.
- 65.
See Jiang (2008).
- 66.
I.e., ecological conservation red line, environmental quality bottom line, resource utilization upper limit line, and ecological environment access list.
- 67.
Central People’s Government of China, “A Nationwide Ecological and Environmental Zoning Management and Control System Has Been Basically Established” <http://www.gov.cn/xinwen/2021-12/24/content_5664332.htm> accessed 18 April 2022.
- 68.
For example, the traditional ones like political security, military security, and economic security.
- 69.
See Li and Zhao (2019).
- 70.
Bureau of Ecology and Environment of **. It contains three basic laws: the law of unity of opposites, the law of interchange of quality and quantity and the law of negation of negation. The law of unity of opposites indicates that the conflicting sides are both opposed and united, thus all together promoting the development of things.
- 98.
David R. Aven, Samuel D. Aven, Giacomo A. Buscemi and others v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Final Award dated 18 September 2018, para. 412–413.
- 99.
“Let’s Ensure the Sovereignty of the Peoples in Free Trade Agreements!” <https://plataforma.chileconvencion.cl/m/iniciativa_popular/detalle?id=33622> accessed 2 February 2022.
- 100.
Antoine Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability of 27 October 1989, para. 81.
- 101.
See Walter (2011).
- 102.
See Magraw (2019).
- 103.
Viñuales (2009).
- 104.
See Tienhaara (2018).
- 105.
See Climate Change Counsel, “ECT, climate change and clean energy transition: A Study of the Jurisprudence,” p. 74.
- 106.
See Viñuales (2009).
- 107.
Such as resort to experts, counterclaims and res judicata. See Laurence Boisson de Chazournes, “Environmental Protection and Investment Arbitration: Yin and Yang” (2017) 10 Anuario Colombiano de Derecho Internacional (Colombian Yearbook of International Law) 371, 389–395.
- 108.
CCSI, “Call for ISDS Moratorium During COVID-19 Crisis and Response” <https://ccsi.columbia.edu/content/call-isds-moratorium-during-covid-19-crisis-and-response> accessed 13 March 2022.
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Qi, T., Liu, D. (2024). Carbon Neutrality, Economic Transformation, and Foreign Investment Protection: A China’s Perspective. In: Wei, S. (eds) International Investment Law at the Juncture. International Law in Asia. Springer, Singapore. https://doi.org/10.1007/978-981-97-2183-2_4
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