Scaling the Great Wall : the EU-China comprehensive agreement on investment and market access

Abstract

The European Union and China have been negotiating an investment agreement with a comprehensive scope including the improvement of market access conditions for investors. Albeit a pressing issue, progress has been plagued with challenges. The problems regarding access especially to Chinese markets can be overcome by approaching the issue from the viewpoint of a key legal provision, namely (pre-establishment) national treatment, which must be incorporated into the treaty in a careful and balanced, yet ambitious manner. The present article examines how this provision can be formulated in investment treaties to augment the law governing market access. It therefore reviews the past investment law practices involving each party and establishes the legal obstacles for the Comprehensive Agreement on Investment, and possible solutions. It concludes that while older investment agreements can serve as building blocks for the agreement, they also present legal issues ranging from interpretative problems to questions about domestic reforms.