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Reflections on China-Africa BITs

Published online by Cambridge University Press:  20 January 2017

Won Kidane
Won Kidane*
Affiliation:
Seattle University School of Law
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Type
China-Africa Investment Treaties and Dispute Settlement: A Piece of the Multipolar Puzzle
Information
Proceedings of the ASIL Annual Meeting , Volume 107 , 2013 , pp. 225 - 227
Copyright
Copyright © American Society of International Law 2014

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References

* Chen Fuli did not submit remarks for the Proceedings.

1 Detailed information on China-Africa economic relations is available on the official website of the Forum on China-Africa Cooperation (FOCAC) at http://www.focac.org/eng/.

2 See, e.g., Smith, David, Hillary Clinton Launches African Tour with Veiled Attack on China, Guardian, Aug. 1, 2012 Google Scholar, http://www.guardian.co.uk/world/2012/aug/01/hillary-clinton-africa-china (“Hillary Clinton, the US secretary of state, has started an 11-day tour of Africa by contrasting America’s commitment to democracy and human rights with rival powers’ focus on exploiting resources. Although Clinton did not mention any country by name, her remarks will be widely interpreted as a swipe at China, which eclipsed the US as Africa’s biggest trading partner three years ago.”). A growing academic literature covers this subject. Prominent ones include Deborah Brautigam, The Dragon’s Gift: The Real Story of China in Africa 308 (2009) (“Where the West regularly changes its development advice, programs, and approach in Africa … China does not claim to know what Africa must do to develop. China has argued that it was wrong to impose political and economic conditionality in exchange for aid, and that countries should be free to find their own path way out of poverty.”). See also, generally, Chris Aldren, China in Africa: Partner, Competitor, or Hegemon? (2007); Ian Taylor, China and Africa: Engagement and Compromise (2006); Sarah Raine, China’s African Challenges (2009); China Returns to Africa: A Rising Power and a Continent Embrace (Chris Alden, D. Large & Ricardo Soares De Oliveira eds., 2008); Robert I. Rotberg, China into Africa: Trade, Aid, and Influence (2008); and, most recently, David H. Shinn & Joshua Eisenman, China and Africa: A Century of Engagement (2012).

3 United Nations Conference on Trade and Development (UNCTAD), Economic Development in Africa Report 2010: South-South Cooperation: Africa and the New Forms of Development Partnership 24—25 (2010), available at http://unctad.org/en/Docs/aldcafrica2010_en.pdf [hereinafter UNCTAD Economic Development in Africa Report]. In development discourses, the terms “North” and “South” are typically used to signify the level of development of countries. All African countries ordinarily fall under the South category. Id. at 1.

4 Id. at 554; Fortier, L. Yves, The Canadian Approach to Investment Protection: How Far We Have Come!, in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer 525–43, 528 (Bender, Christina, Kriebaum, Ursula, Reinisch, August & Wittich, Stephan eds., 2009)Google Scholar (“BITs emerged as a tool in the Cold War period to promote FDI in developing countries.”).

5 Norah Gallagher & Wenhua Shan, Chinese Investment Treaties 35 (2009).

6 UNCTAD Economic Development in Africa Report, supra note 3, at 24.

7 Id.

8 See, e.g., The Chinese in Africa: Trying to Pull Together, Africans Are Asking Whether China Is Making Their Lunch or Eating It, Economist, Apr. 20, 2010, available at www.economist.com/node/18586448/print (evaluating the competing arguments). The Economist hosts an ongoing online scholarly debate on Chinese involvement in Africa, at http://www.economist.com/debate/overview/165. As of September 9, 2012, the score was 59% to 41% in favor of Chinese involvement in Africa. A New York Times op-ed piece has also discussed China’s intentions in Africa:

Despite all the scaremongering, China’s motives for investing in Africa are actually quite pure. To satisfy China’s population and prevent a crisis of legitimacy for their rule, leaders in Beijing need to keep economic growth rates high and continue to bring hundreds of millions of people out of poverty. And to do so, China needs arable land, oil and minerals. Pursuing imperial or colonial ambitions with masses of impoverished people at home would be wholly irrational and out of sync with China’s current strategic thinking.

Moreover, the evidence does not support a claim that Africans themselves feel exploited. To the contrary, China’s role is broadly welcomed across the continent. A 2007 Pew Research Center survey of 10 sub-Saharan African countries found that Africans overwhelmingly viewed Chinese economic growth as beneficial. In virtually all countries surveyed, China’s involvement was viewed in a much more positive light than America’s; in Senegal, 86 percent said China’s role in their country helped make things better, compared with 56 percent who felt that way about America’s role. In Kenya, 91 percent of respondents said they believed China’s influence was positive, versus only 74 percent for the United States.

Moyo, Dambisa, Op-Ed., Beijing, a Boon for Africa, N.Y. Times, June 27, 2012 Google Scholar, available at http://www.nytimes.com/2012/06/28/opinion/beijing-a-boon-for-africa.html.

9 Won Kidane, China-Africa Dispute Settlement: The Law, Culture and Economics of Arbitration 4 n.3 and accompanying text (2011).

10 Id. at 18 (quoting Shinn, David H., Comparing Engagement with Africa by China and the United States, China in Africa Symposium African Studies Program, paper presented at the East Asian Studies Center and the Center for International Business Education and Research, Indiana University, Bloomington, Indiana 1 (Mar. 2009)Google Scholar, available at https://scholarworks.iu.edu/dspace/bitstream/handle/2022/3466/China%20in%20Africa%20Symposium%20-%20the%20good%20one.pdf?sequence%C2%BC1).

11 UNCTAD Economic Development in Africa Report, supra note 3, at 3:

Despite the potential benefits to Africa from South–South cooperation, it should be noted that the new partnerships also present challenges for the region. For example, there are concerns that it could result in a deterioration of governance and environmental quality and also hamper efforts to achieve debt sustainability in the region. Given these concerns, it is clear that the ultimate impact of South–South cooperation in Africa will depend on the extent to which African countries are able to maximize the benefits while minimizing any potential risks.

12 A list of China’s BITs with all countries as of June 1, 2012, is available at http://unctad.org/Sections/dite_pcbb/docs/bits_china.pdf. Thirty-three out of the more than 120 Chinese BITs are with African states. Of the 33, 16 have come into effect. Id. Neither the UNCTAD nor the ICSID database show all 16 as having come into effect, but the Chinese Ministry of Foreign Commerce provides that information on its official website at http://english.mofcom.gov.cn/.

13 See generally the provisions of the China-Madagascar BIT.

14 Currently, many of the roughly 3,000 BITs are South-South. See UNCTAD database of BITs at http://www.unctadxi.org/templates/DocSearch_779.aspx.

15 For example, it is suggested that Chinese investment approach is being “Americanized.” Congyan, Cai, China-US BIT Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications, 12 J. Int’l Econ. L. 457, 467 (2009)CrossRefGoogle Scholar.