This chapter assesses States’ policy options to limit the practice of treaty shopping in new IIAs, focusing on the definitions of investor and investment. To this end, after defining the relevant scenarios of treaty shopping, exploring the reasons for its occurrence and explaining the relevance of refined investor and investment definitions in a prospective China-EU BIT, this contribution will address the legal issues arising with respect to the investor and investment definitions, discuss relevant arbitral practice and examine EU and Chinese IIA practice in this regard. It will show that careful treaty drafting, containing a higher degree of clarity as to the key definitions, can go a long way toward ensuring that only those investors and investments contemplated by the negotiating parties will benefit from treaty protection.
Elisabeth Tuerk, Jorun Baumgartner and Dafina Atanasova
Growing unease with the current functioning of the global regime of international investment agreements (IIA), together with today’s sustainable development imperative, the greater role of governments in the economy and the evolution of the investment landscape have triggered a move towards reforming international investment rulemaking to make it better suited for today’s policy challenges. As a result, the IIA regime is going through a period of reflection, review and revision. This chapter provides an overview of key points of criticism against the current IIA regime and recent trends and debates informing IIA reform. As such, it lays out selected IIA aspects and dynamics from a ‘bird’s eye view’ and prepares the ground for more in-depth discussions by other authors in later chapters.