Foreign investors vs sovereign states: towards a global framework, BIT by BIT

Susy Frankel

doi:10.1017/CBO9780511760471.012

- Aa
- Aa

Print publication year: 2010
Online publication date: January 2011

11 - Foreign investors vs sovereign states: towards a global framework, BIT by BIT

from PART IV - Transformations in international economic law

By Ko-Yung Tung

Edited by Meredith Kolsky Lewis, Victoria University of Wellington
Susy Frankel, Victoria University of Wellington
Publisher: Cambridge University Press
https://doi.org/10.1017/CBO9780511760471.012
pp 243-268

Export citation

Summary

Introduction

In his letter to Queen Victoria of Great Britain in 1838, Commissioner Lin Tse-Hsu, the Chinese Imperial Customs Commissioner in Canton, wrote:

Magnificently our great Emperor soothes and pacifies [the Middle Kingdom] and the foreign countries, regarding all with the same kindness. If there is profit, then he shares it with the peoples of the world; if there is harm, then he removes it on behalf of the world …

We have read your successive tributary memorials saying ‘In general our countrymen who go to trade in China have always received His Majesty the Emperor's gracious treatment and equal justice.’ … The profit from trade from afar has been enjoyed by them for two hundred years …

But … there are those who smuggle opium to seduce the Chinese people and so cause the spread of the poison to all provinces. Such persons who only care to profit themselves, and disregard their harm to others, are not tolerated by the laws of heaven and are unanimously hated by human beings. His Majesty the Emperor [is enraged].

… By what right do they then in return use the poisonous drug to injure the Chinese people? … Let us ask, where is your conscience? I have heard that the smoking of opium is very strictly forbidden by your country; that is because the harm caused by opium is clearly understood. Since it is not permitted to do harm to your own country, then even less should you let it be passed on to the harm of other countries – how much less to China! … […]

Teng, S. and Fairbank, J., China's Response to the West: A Documentary Survey 1839–1923 (Cambridge, Harvard University Press, 1954)

Friedman, T., The World is Flat: A Brief History of the Twenty-first Century (New York, Farrar, Straus & Giroux, 2005)

McLachlan, C., Shore, L. and Weiniger, M., International Investment Arbitration: Substantive Principles (Oxford University Press, 2007)

Stiglitz, J. E., Globalization and Its Discontents (New York, W. W. Norton, 2002)

Stiglitz, J. E., Making Globalization Work (London, Allen Lane, 2006)

Guzman, A. T., ‘Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties’, Virginia Journal of International Law, 38 (1998) 639

Schreuer, H., The ICSID Convention: A Commentary (New York, Cambridge University Press, 2001)

Bishop, R. D., Crawford, J. and Reisman, W. M. (eds.), Foreign Investment Disputes: Cases, Materials and Commentary (The Hague, Kluwer Law International, 2005)

Coe, J. J., Jr, ‘Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods’, Vanderbilt Journal of Transnational Law, 36 (2003) 1384, p. 1391

Tung, K.-Y. and Cox-Alomar, R., ‘The New Generation of China BITs in light of Tza Yap Shum v. Republic of Peru’, American Review of International Arbitration, 17 (2006) 461

Ganguly, S., ‘The Investor-State Dispute Mechanism (ISDM) and a Sovereign's Power To Protect Public Health’, Columbia Journal of Transnational Law, 38 (1999) 113

Geiger, R., ‘Towards a Multilateral Agreement on Investment’, Cornell International Law Journal, 31 (1998) 467

Franck, S. D., ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, Fordham Law Review, 73 (2005) 1521

Paulsson, J., Denial of Justice in International Law (Cambridge University Press, 2005)

Bjorklund, A. K., ‘Reconciling State Sovereignty and Investor Protection in Denial of Justice Claims’, Virginia Journal of International Law, 45 (2005) 809

International Economic Law and National Autonomy

11 - Foreign investors vs sovereign states: towards a global framework, BIT by BIT

CAPTCHA *