Why early Chinese BITs did not contain explicit references to sustainable development?

Bilateral Investment Treaties (BITs) are being enacted and implemented nowadays between different parties that are having strategic economic interests in pursuing a collaboration to make room for trade and investments in particular in the host country. Such BITs have also gone through an overall legal development where second and third generation BITs have emerged gradually with the aim of responding to the constant and fast technological development that is affecting the economy but also to the gradual inclusion of non-trade concerns through specific provisions in these agreements. These non-economic values concern human rights as well as environmental matters and so on. Thus, the current legal developments of BITs are aiming at balancing different concerns and ensuring that economic matters do not take priority over non-economic issues that are equally important. In this context, one would wonder whether the current Chinese BITs have the potential to include such provisions in the treaties and what are the legal incentives that could convince a Chinese company or even a Chinese State Owned Enterprise (SOE) to include such clauses in the overall terms of the agreement with the host country. In the chapter Law, Culture, and the Politics of Chinese Outward Foreign Investment, the author Valentina Sara Vadi explored this matter by examining the legal reasons for which Chinese BITs could include such provisions in the core of their investment agreements. The author has found several legal elements that would justify the inclusion of NTCs in these treaties. Not only that but also, the arguments that have been provided through the article have been supported by actual legal practices used when conducting specific types of bilateral collaboration between the Chinese government and other states. Among the many propositions that could be adopted through these agreements, there is a suggestion for the introduction of General Agreement on Tariffs and Trade (GATT) 1994 style exception clause in these treaties. Such clause would bound any government to protect human rights or environmental matters just like for instance several provisions in the GATT agreement. Another suggestion revolves around the incorporation in the BITs of a clause that impose Corporate Social Responsibility (CSR). Accordingly, the companies will have to respect such concept when conducting their activities abroad especially where there is a low record of respect to non-economic values in the domestic legal system. Moreover, almost all Chinese BITs contain the wording, “in accordance with the laws and regulations” of the host state, in their definition of investment which means that in any case, the Chinese companies must respect the laws of the country regarding Non-Trade Concerns (NTCs) when they exist. These are some of the legal justification for the inclusion of NTC clauses in the Chinese BITs conducted abroad.