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Applying the 'Specificity' Test in the Context of Foreign Investment Policies of China “专用性”检验在中国外商投资政策中的应用

Society of International Economic Law (SIEL) Inaugural Conference (Archive) Pub Date : 2008-10-09 DOI: 10.2139/SSRN.1154622

Xiaojie Lu

{"title":"Applying the 'Specificity' Test in the Context of Foreign Investment Policies of China","authors":"Xiaojie Lu","doi":"10.2139/SSRN.1154622","DOIUrl":"https://doi.org/10.2139/SSRN.1154622","url":null,"abstract":"The confirmative determination on the specificity of China's Investment-Inducing Policy - the \"Two Free/Three Half\" program raises several technical questions about how to clarify the specific requirement provided by the U.S. CVD law and the WTO SCM agreement. The determination also has broad policy implications for China, India, Vietnam, Laos and other developing countries that adopt the similar investment-inducing policies. The examination of the negotiation history shows that the negotiators wanted to put a more stringent discipline on sector-specific subsidies. Moreover, if we accept that incentives given to foreign investment enterprises are countervailable, it will be inconsistent with the common practice adopoted by the WTO system with respect to foreign investment policies. The level of foreign ownership alone cannot determine the specificity of a subsidy. Thus, extending the CVD application to those foreign investment policies raises concerns as to how much room developing countries have in their policymaking for social and economic development. It turns out any careless manipulation of the specificity test will inappropriately restrict the state autonomy on the policy-making in the area of investment encouragements, which will undermine the long run of multilateral trading system.","PeriodicalId":170058,"journal":{"name":"Society of International Economic Law (SIEL) Inaugural Conference (Archive)","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127143840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis 国际法的例外判断:安全、公共秩序与金融危机

Society of International Economic Law (SIEL) Inaugural Conference (Archive) Pub Date : 2008-07-02 DOI: 10.2139/ssrn.1154702

J. Kurtz

{"title":"Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis","authors":"J. Kurtz","doi":"10.2139/ssrn.1154702","DOIUrl":"https://doi.org/10.2139/ssrn.1154702","url":null,"abstract":"Abstract: This paper examines the impact of international law on the ability of states to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001-2 Argentine financial crisis and the adjudication of Argentina’s defence of a state of necessity, under both subject treaties and at customary international law. The paper uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II ( lex specialis ) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The paper argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the paper isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor-state arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II ( lex specialis ) and III (primary-secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The paper concludes by offering a framework to address the key interpretative questions implicated in that method: (i) the identification and scope of the notion of “public order” and a state’s “essential security interests”; and (ii) the appropriate test of “necessity” or means-end scrutiny.","PeriodicalId":170058,"journal":{"name":"Society of International Economic Law (SIEL) Inaugural Conference (Archive)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128351616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 20