Confusion or Clarity in Perspective: Jurisprudential Review of the Investorstate Arbitration Clause in the ASEAN-China Investment Treaty and the Award on Jurisdiction in the First China-Related ICSID Case
(2010) 4(1) World Arbitration and Mediation Review 27-85
62 Pages Posted: 28 Sep 2013
Date Written: September 26, 2013
Abstract
Apart from the financial crisis, the universe of investment treaty arbitration witnessed two eye-catching events in 2009. First, the Association of South East Asian Nations (“ASEAN”) and the People’s Republic of China (“China”) entered into an Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation (the “Treaty”) in Bangkok, Thailand on August 15, 2009. Second, the Decision on Jurisdiction and Competence in the case of Tza Yap Shum v The Republic of Peru (the “Award”), first ever case heard on a bilateral investment treaty (“BIT”) involving China, was rendered by the arbitration tribunal (the “Tribunal”) convened under the auspices of ICSID on June 19, 2009. The focus of this article is to review some key aspects of the investor-state arbitration clause in both the Award and the Treaty. The BIT practice of China and ASEAN member states will be briefly reviewed. An Asian approach towards multilateralism will be discussed in the article.
Keywords: ASEAN-China Investment Treaty, Tza Yap Shum v. Peru
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