Another likely consequence of the BRI is an to anticipate that the implementation of Chinese investors. For instance,a Heilongjiang increase in investor-state dispute settlement BRI will entail a significant increase in in Chin and others v investor-state arbitration. Mongolia the arbitral tribunal dismissed the Chinese investors’ claims against China’s involvement in ISDS has Many of the BRI projects are complex, The possible renegotiation by China Mongolia due to a lack of jurisdiction. Home remained scarce to date, especially if long-term projects that will require the of its BITs with BRI countries The Tribunal concluded that the BIT’s the volume of Chinese Foreign Direct investment of large sums of money. dispute settlement clause restricted Editorial Investment is considered. China has Additionally, many of the BRI countries China’s BITs can be classified into three its jurisdiction only to disputes over been party to only three known ISDS face political and/or economic instability, different generations: the amount of compensation for expropriation and hence the Tribunal Insight proceedings as a host state.8 Chinese a lack of regulation, or arguably the I. the first generation of BITs did not have jurisdiction to decide on When arbitration is not investors, on their part, have only absence of a fair and impartial legal voluntary: the case of Mutu initiated five known ISDS proceedings system. Hence, it is quite likely that (concluded between 1982 and 1989) the legality of an expropriation.12 In other and Pechstein v. Switzerland against other states.9 All these investment disputes with the host states either do not permit ISDS or limit its cases (Tza Yap Shum v PeruSanum, proceedings were started in the will arise during the implementation of availability to disputes concerning Investments vLaos and BeijingUrban Global Briefing late 2000s. these projects. the amount of compensation for Construction Group v Yemen), however, The impact of The Belt and expropriation; BITs have been interpreted somewhat Road Initiative on investment II. the second generation (1990 - 1997) more broadly. arbitration 8Ekran v. China in 2011, Ansung Housing v. China The possibility of initiating investor- in 2014 and Hela Schwarz v. China in 2017. Source: state arbitrations as a consequence of also provide for limited access to “What’s in a name?”: NAFTA http://investmentpolicyhub.unctad.org/ISDS/ ISDS but contain references to ICSID It is possible that, in light of the expected to USMCA and what this CountryCases/42?partyRole=2 these disputes will depend on the terms change means for investment 9Tza Yap Shum v. Peru in 2007, China Heilongijang of China’s Bilateral Investment treaties arbitration. increase of claims by Chinese investors protection and others v Mongolia in 2010, Ping An v. Belgium III.the third generation (1997 - present) arising out of BRI projects, China will begin in 2012, Beijing Urban Construction v. Yemen in 2014 (“BITs”) with the host country. China and Sanum Investments v. Laos (II) in 2017. Source: has entered into BITs with most BRI generally contain comprehensive negotiating new BITs with BRI States or In Focus http://investmentpolicyhub.unctad.org/ISDS/ ISDS provisions granting access amending existing BITs to ensure that its Cultural Heritage CountryCases/42?partyRole=1 countries. Hence, it seems reasonable to international arbitration for all investors are protected by BITs. Considerations in investor-state disputes.10 International Investment Conclusion Arbitration Some of the BITs entered into with BRI Smart Contracts and countries belong to the first generation The BRI will likely have a significant International Arbitration: and, as a result, do not generally impact on investment arbitration. Friends or Foes? authorise investor-state arbitration or Chinese arbitration institutions have The Achmea decision: they limit arbitration to valuation issues already adapted their rules in order significant uncertainties linger in case of expropriations, excluding to hear investor-state disputes. It is questions of liability.11 also likely that the BRI will cause the Investment Arbitration: number of investment arbitrations in BRI Contact Lawyers These limitations have been raised, countries to rise. However, the impact of sometimes successfully, against the BRI on investment arbitration may only be known in the years to come. 10 TAHBAZ, Christopher K et al.: Investment Treaty Arbitration in the Asia-Pacific, Global Arbitration Review, 25 May 2018, link: https://globalarbitrationreview.com/ 12The award can be accessed in the following link: chapter/1169962/investment-treaty-arbitration-in-the- http://investmentpolicyhub.unctad.org/ISDS/Details/602. asia-pacific.. Annulment proceedings against this award are currently www.uria.com 11 NORTON, Patrick M.: note 2. pending. 9