双边投资协定

Agreement between the Federal Republic of Germany and the People's Republic of China on the Encouragement and Reciprocal Protection of InvestmentsThe Federal Republic of Germany and the People's Republic of China(hereinafter referred to as the "Contracting Parties"),Intending to create favourable conditions for investment by investors of one Contracting Party in the territory of the other Contracting Party,Recognizing that the encouragement, promotion and protection of such investment will be conducive to stimulating business initiative of the investors and will increase prosperity in both States,Desiring to intensify the economic cooperation of both States,Have agreed as follows:Article 1 DefinitionsFor the purpose of this Agreement1. the term "investment" means every kind of asset invested directly or indirectly by investors of one Contracting Party in the territory of the other Contracting Party, and in particular, though not exclusively, includes:(a) movable and immovable property and other property rights such as mortgages and pledges;(b) shares, debentures, stock and any other kind of interest in companies;(c) claims to money or to any other performance having an economic value associated with an investment;(d) intellectual property rights, in particular copyrights, patents and industrial designs, trade-marks, trade-names, technical processes, trade and business secrets, know-how and good-will;(e) business concessions conferred by law or under contract permitted by law, including concessions to search for, cultivate, extract or exploit natural resources;any change in the form in which assets are invested does not affect their character as investments;2. the term "investor" means(a) in respect of the Federal Republic of Germany:– Germans within the meaning of the Basic Law for the Federal Republic of Germany,– any juridical person as well as any commercial or other company or association with or without legal personality having its seat in the territory of the Federal Republic of German y, irrespective of whether or not its activities are directed at profit;(b) in respect of the People's Republic of China:– natural persons who have nationality of the People's Republic of China in accordance with its laws,–economic entities, including companies, corporations, associations, partnerships and other organizations, incorporated and constituted under the laws and regulations of and with their seats in the People's Republic of China, irrespective of whether or not for profit and whether their liabilities are limited or not;3. the term "return" means the amounts yielded from investments, including profits, dividends, interests, capital gains, royalties, fees and other legitimate income.Article 2 Promotion and Protection of Investment(1) Each Contracting Party shall encourage investors of the other Contracting Party to make investments in its territory and admit such investments in accordance with its laws and regulations.(2) Investments of the investors of either Contracting Party shall enjoy constant protection and security in the territory of the other Contracting Party.(3) Neither Contracting Party shall take any arbitrary or discriminatory measures against the management, maintenance, use, enjoyment and disposal of the investments by the investors of the other Contracting Party.(4) Subject to its laws and regulations, either Contracting Party shall give sympathetic consideration to applications for obtaining visas and working permits to nationals of the other Contracting Party engaging in activities associated with investments made in the territory of that Contracting Party.Article 3 Treatment of Investment(1) Investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment in the territory of the other Contracting Party.(2) Each Contracting Party shall accord to investments and activities associated with such investments by the investors of the other Contracting Party treatment not less favourable than that accorded to the investments and associated activities by its own investors.(3) Neither Contracting Party shall subject investments and activities associated with such investments by the investors of the other Contracting Party to treatment less favourable than that accorded to the investments and associated activities by the investors of any third State.(4) The provisions of Paragraphs 1 to 3 of this Article shall not be construed so as to oblige one Contracting Party to extend to the investors of the other Contracting Party the benefit of any treatment, preference or privilege by virtue of(a) any membership or association with any existing or future customs union, free trade zone, economic union, common market;(b) any double taxation agreement or other agreement regarding matters of taxation.Article 4 Expropriation and Compensation(1) Investments by investors of either Contracting Party shall enjoy full protection and security in the territory of the other Contracting Party.(2) Investments by investors of either Contracting Party shall not directly or indirectly be expropriated, nationalized or subjected to any other measure the effects of which would be tantamount to expropriation or nationalization in the territory of the other Contracting Party (hereinafter referred to as expropriation) except for the public benefit and against compensation. Such compensation shall be equivalent to the value of the investment immediately before the expropriation is taken or the threatening expropriation has become publicly known, whichever is earlier. The compensation shall be paid without delay and shall carry interest at the prevailing commercial rate until the time of payment; it shall be effectively realizable and freely transferable. Precautions shall have been made in an appropriate manner at or prior to the time of expropriation for the determination and payment of such compensation. At the request of the investor the legality of any such expropriation and the amount of compensation shall be subject to review by national courts, notwithstanding the provisions of Article 9.(3) Investors of either Contracting Party shall enjoy most-favoured-nation treatment in the territory of the other Contracting Party in respect of the matters provided for in this Article.Article 5 Compensation for Damages and LossesInvestors of either Contracting Party whose investments suffer losses in the territory of the other Contracting Party owing to war or other armed conflict, revolution, a state of national emergency or revolt, shall be accorded treatment by such other Contracting Party not less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State as regards restitution, indemnification, compensation or other valuable consideration.Article 6 Repatriation of Investments and Returns(1) Each Contracting Party shall guarantee to the investors of the other Contracting Party the transfer of their investments and returns held in its territory, including:(a) the principal and additional amounts to maintain or increase the investment;(b) returns;(c) proceeds obtained from the total or partial sale or liquidation of investments or amounts obtained from the reduction of investment capital;(d) payments pursuant to a loan agreement in connection with investments;(e) payments in connection with contracting projects;(f) earnings of nationals of the other Contracting Party who work in connection with an investment in its territory.(2) Each Contracting Party shall guarantee to the investors of the other Contracting Party the free transfer of compensation and other payments under Article 4 and 5.(3) The transfer mentioned above shall be made without delay in a freely convertible currency and at the prevailing market rate of exchange applicable within the Contracting Party accepting the investments and on the date of transfer. In the event that the market rate of exchange does not exist, the rate of exchange shall correspond to the cross rate obtained from those rates which would be applied by the International Mone tary Fund on the date of payment for conversions of the currencies concerned into Special Drawing Rights.Article 7 SubrogationIf one Contracting Party or its designated agency makes a payment to its investor under a guarantee given in respect of an investment made in the territory of the other Contracting Party, the latter Contracting Party shall recognize the assignment of all the rights and claims of the indemnified investor to the former Contracting Party or its designated agency, by law or by legal transactions, and the right of the former Contracting Party or its designated agency to exercise by virtue of subrogation any such right to same extent as the investor. As regards the transfer of payments made by virtue of such assigned claims, Article 6 shall apply mutatis mutandis.Article 8 Settlement of Disputes between Contracting Parties(1) Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall, as far as possible, be settled with consultation through diplomatic channel.(2) If a dispute cannot thus be settled within six months, it shall, upon the request of either Contracting Party, be submitted to an ad-hoc arbitral tribunal.(3) Such tribunal comprises three arbitrators. Within two months of the receipt of the written notice requesting arbitration, each Contracting Party shall appoint one arbitrator. Those two arbitrators shall, within further two months, together select a national of a third State having diplomatic relations with both Contracting Parties as Chairman of the arbitral tribunal.(4) If the arbitral tribunal has not been constituted within four months from the receipt ofthe written notice requesting arbitration, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make any necessary appointments. If the President is a national of either Contracting Party or is otherwise prevented from discharging the said functions, the Member of the International Court of Justice next in seniority who is not a national of either Contracting Party or is not otherwise prevented from discharging the said functions shall be invited to make such necessary appointments.(5) The arbitral tribunal shall determine its own procedure. The arbitral tribunal shall reach its award in accordance with the provisions of this Agreement and the principles of international law recognized by both Contracting Parties.(6) The arbitral tribunal shall reach its award by a majority of votes. Such award shall be final and binding upon both Contracting Parties. The arbitral tribunal shall, upon the request of either Contracting Party, explain the reasons of its award.(7) Each Contracting Party shall bear the costs of its appointed arbitrator and of its representation in arbitral proceedings. The relevant costs of the Chairman and tribunal shall be borne in equal parts by the Contracting Parties.Article 9 Settlement of Disputes between Investors and one Contracting Party(1) Any dispute concerning investments between a Contracting Party and an investor of the other Contracting Party should as far as possible be settled amicably between the parties in dispute.(2) If the dispute cannot be settled within six months of the date when it has been raised by one of the parties in dispute, it shall, at the request of the investor of the other Contracting State, be submitted for arbitration.(3) The dispute shall be submitted for arbitration under the Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID), unless the parties in dispute agree on an ad-hoc arbitral tribunal to be established under the Arbitration Rules of the United Nations Commission on the International Trade Law (UNCITRAL) or other arbitration rules.(4) Any award by an ad-hoc tribunal shall be final and binding. Any award under the procedures of the said Convention shall be binding and subject only to those appeals or remedies provided for in this Convention. The awards shall be enforced in accordance with domestic law.Article 10 Other Obligations(1) If the legislation of either Contracting Parties or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to this Agreement contain a regulation, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is providedfor by this Agreement, such regulation shall to the extent that it is more favourable prevail over this Agreement.(2) Each Contracting Party shall observe any other obligation it has entered into with regard to investments in its territory by investors of the other Contracting Party.Article 11 ApplicationThis Agreement shall apply to investments, which are made prior to or after its entry into force by investors of either Contracting Party in accordance with the laws and regulations of the other Contracting Party in the territory of the latter.Article 12 Relations between Contracting PartiesThe provisions of the present Agreement shall apply irrespective of the existence of diplomatic or consular relations between the Contracting Parties.Article 13 ConsultationsEither Contracting Party may propose to the other Contracting Party that consultations be held on any matter concerning interpretation, application and implementation of the Agreement. The other Contracting Party shall accord sympathetic consideration to the proposal and shall afford adequate opportunity for such consultations.Article 14 ProtocolThe attached protocol shall form an integral part of this Agreement.Article 15 Entry into Force, Duration and Termination(1) This Agreement shall enter into force one month from the date on which both Contracting Parties have notified each other in writing that the national requirements for such entry into force have been fulfilled. The relevant date shall be the day on which the last notification is received.(2) This Agreement shall remain in force for a period of ten years and shall be extended thereafter for an unlimited period unless denounced in writing through diplomatic channels by either Contracting Party twelve months before its expiration.(3) After the expiration of the initial ten years period, either Contracting Party may at any time thereafter terminate this Agreement by giving at least twelve month's written notice through diplomatic channels to the other Contracting Party.(4) With respect to investments made prior to the date of termination of this Agreement, the provisions of Article 1 to 14 shall continue to be effective for a further period of twenty years from such date of termination.Article 16 Transition(1) Upon entry into force of this Agreement the Agreement of 7 October 1983 between theFederal Republic of Germany and the People's Republic of China on the Encouragement and Reciprocal Protection of Investments shall terminate.(2) The present Agreement shall apply to all investments made by investors of either Contracting Party in the territory of the other Contracting Party, whether made before or after the entry into force of this Agreement, but shall not apply to any dispute or any claim concerning an investment which was already under judicial or arbitral process before its entry into force. Such disputes and claims shall continue to be settled according to the provisions of the Agreement of 7 October 1983 mentioned in paragraph 1 of this Article.Done at Beijing on December 1, 2003 in duplicate in the German, Chinese and English languages, all texts being authentic. In case of divergent interpretation of the German and the Chinese text, the English text shall prevail.For the People's Republic of China For the Federal Republic of GermanyYu Guangzhou ChrobogProtocol to the Agreement between the Federal Republic of Germany and the People's Republic of China on the Encouragement and Reciprocal Protection ofInvestmentsOn signing the Agreement between the Federal Republic of Germany and the People's Republic of China on the Encouragement and Reciprocal Protection of Investments, the plenipotentiaries, being duly authorized, have, in addition, agreed on the following provisions, which shall be regarded as an integral part of the said Agreement:1. Ad Article 1(a) For the avoidance of doubt, the Contracting Parties agree that investments as defined in Article 1 are those made for the purpose of establishing lasting economic relations in connection with an enterprise, especially those which allow to exercise effective influence in its management.(b) "Invested indirectly" means invested by an investor of one Contracting Party through a company which is fully or partially owned by the investor and having its seat in the territory of the other Contracting Party.(c) Returns from the investment and from reinvestments shall enjoy the same protectionas the investment.2. Ad Article 2The Agreement shall apply to the territory of each Contracting Party including the territorial sea as well as to the areas of the exclusive economic zone and the contin ental shelf insofar as international law permits the Contracting Party concerned to exercise sovereign rights or jurisdiction in these areas.3. Ad Article 2 and 3With regard to the People's Republic of China paragraph 3 of Article 2 and paragraph 2 of Article 3 do not apply to(a) any existing non-conforming measures maintained within its territory;(b) the continuation of any such non-conforming measure;(c) any amendment to any such non-conforming measure to the extent that the amendment does not increase the non-conformity of these measures.The People's Republic of China will take all appropriate steps in order to progressively remove the non-conforming measures.4. Ad Article 3(a) The following shall more particularly, though not exclusively, be deemed "activity" within the meaning of Article 3 (2): the management, maintenance, use, enjoyment and disposal of an investment. The following shall, in particular, be deemed "treatment less favourable" within the meaning of Article 3: unequal treatment in the case of restrictions on the purchase of raw or auxiliary materials, of energy or fuel or of means of production or operation of any kind as well as any other measures having similar effects. Measures that have to be taken for reasons of public security and order, public health or morality shall not be deemed "treatment less favourable" within the meaning of Article 3.(b) The provisions of Article 3 do not oblige a Contracting Party to extend to investors resident in the territory of the other Contracting Party tax privileges, tax exemptions and tax reductions which according to its tax laws are granted only to investors resident in its territory.5. Ad Article 6(a) With regard to the People's Republic of China:–Article 6, paragraph 1 (c) will apply provided that the transfer shall comply with the relevant formalities stipulated by the present Chinese laws and regulations relating to exchange control.– Article 6, paragraph 1 (d) will apply provided that a loan-agreement has been registered with the relevant foreign exchange administration authority.To the extent that the formalities mentioned above are no longer required according to the relevant provisions of Chinese law, Article 6 shall apply without restrictions.(b) A transfer shall be deemed to have been made "without delay" within the meaning of Article 6 (3) if effected within such period as is normally required for the completion of transfer formalities. The said period shall commence on the day on which the relevant request has been submitted to the relevant foreign exchange administration with full and authentic documentation and information and may on no account exceed two months.6. To Article 9With respect to investments in the People's Republic of China an investor of the Federal Republic of Germany may submit a dispute for arbitration under the following conditions only:(a) the investor has referred the issue to an administrative review procedure according to Chinese law,(b) the dispute still exists three months after he has brought the issue to the review procedure, and(c) in case the issue has been brought to a Chinese court, it can be withdrawn by the investor according to Chinese law.7. The investors of either Contracting Party are free to choose international means of transport for the transport of persons and/or capital-goods directly connected with an investment within the meaning of this Agreement.For the People's Republic of China For the Federal Republic of GermanyYu Guangzhou Chrobog。

双边投资协定制度在我国已经签署的110多个双边投资协定〔BITs〕中，有17个规定了国民待遇，而各个BITs 中有关国民待遇的定义、适用对象、适用标准等的具体措辞并不一致。

审视我国BITs中有关国民待遇制度的利弊得失并积极寻求完善我国双边投资立法的对策，对于改善我国的投资法律环境和实现内外资的平等待遇具有重要的现实意义。

双边投资协定国民待遇重构在国际投资法领域，投资待遇一直是一个备受关注的问题。

近年来，国民待遇在多边和双边投资协定中被广泛采用，代表了国际投资法领域的最新开展趋势。

甚至有学者主张，国民待遇已经成为外资待遇的一般准那么。

据统计，迄至2005年底，我国已经与117个国家缔结了“双边投资协定〞〔BITs〕。

1目前，我国正在积极与一些国家进行缔结BITs的谈判或修订原有的BITs.从我国BITs的实践来看，我国对外资待遇所采用的标准主要有最惠国待遇、公平与公正待遇以及国民待遇。

其中，只有17个BITs规定了国民待遇，而这17个BITs中有关国民待遇的定义、适用对象、适用标准等的具体措辞并不一致。

一、我国BITs中国民待遇制度存在的问题〔一〕有关国民待遇的规定不适应形势开展的需要迄今为止，中国签订的117个BITs中，只有17定了国民待遇，其他的都只规定公平公正待遇和最惠国待遇。

这种现状与当今国际投资法领域投资自由化的开展趋势完全不相适应，也与我国作为世界上吸收国际直接投资最多的国家之一的经济大国地位极不相称，不利于内外资在平等根底上进行公平竞争。

诚然，是否接受国民待遇以及在什么程度上接受国民待遇属于一国国内法管辖事项，必须根据本国国情作出适当的选择。

上世纪八九十年代我国不接受或是有条件地接受国民待遇是鉴于我国当时的国情考虑，是正确的。

但是，经过20多年吸收外资的实践和开展，我国的经济实力已经发生了根本性的变化，也就是说，国情已经变了。

既然国情变化了，那么政策也必须跟着改变。

随着市场经济体制确实立，对外开放的进一步扩大以及经济国际化程度的不断加深，我国这种事实上有限的国民待遇已不能适应形势开展的需要。

1第七节双边投资保护协定一、保护外国投资双边条约的产生和发展。

二战后，以美国为首的发达国家对外直接投资剧增。

与此同时，众多殖民地、半殖民地国家纷纷赢得了独立，并极力恢复和维护自己的经济主权。

从本世纪五十年代末开始，一场大规模的针对外资的国有化运动在发展中国家逐渐展开，至六七十年代达到高潮。

从40年代开始，美国等发达国家纷纷立法，建立了旨在保护本国海外投资的保险制度。

但对于海外投资者母国投资保险机构国际代位索赔权的实现仍无法保证。

继大规模国有化浪潮之后，发展中国家在其国内新的立法中多有鼓励和保护外商投资的新规定，但它毕竟只是国内立法，仍不足以切实消除外国投资者的疑虑。

这种单纯依据发展中国家有关外资的国内立法或发达国家有关海外投资保险制度的国内立法，都无法为发达国家流向发展中国家的投资提供充分的法律保护，于是，有关国际投资保护的双边条约(协定)便得以逐渐盛行。

二、保护国际投资双边条约的类型有关国际投资保护的双边条约，有三种模式：1、友好通商航海条约。

这种条约牵涉的范围颇为广泛，因而对于外国投资的法2律保护这一特定问题的规定往往欠明确、具体，美国等国家在1960年后就不再推行“友好通商航海条约"这一双边条约模式了。

2、投资保证协议。

此类双边协议的核心在于让对方缔约国正式确认美国国内的承保机构在有关的政治风险事故发生并依约向投保的海外投资者理赔之后，享有海外投资者向东道国政府索赔的代位权和其他相关权利及地位。

3、促进和保护投资协定。

此类协定内容详实具体，实体性规定和程序性规定并举，能够为资本输出国的海外投资提供切实有效的保护，因而一问世便得到各发达国家的竞相效仿和大力推行。

而且也为发展中国家所广泛接受。

三、双边投资保护协定的主要内容：当代各国所缔结的双边投资保护协定一般包含投资定义、批准、待遇、代位权、征收条件和补偿以及争端解决程序等条款，其内容往往是资本输出国和资本输入国利益平衡和互相妥协的结果。

第⼗节有关国际投资的双边条约 ⼀、双边投资条约的类型与作⽤ （⼀）双边投资条约的类型 双边投资条约可分为传统型与现代型两⼤类，传统的双边投资条约的内容主要在友好通商航海条约中体现；现代型的是指两国之间订⽴的专门⽤于国际投资保护的双边条约，⼜分为美国式的双边投资保证协定及德国式的促进与保护投资协定。

1.友好通商航海条约 友好通商航海条约（Friendship Commerce Navigation Treaty）是缔约国间就商业活动和航⾏⾃由事宜⽽签订的双边条约，并⾮保护投资的专门性条约。

友好通商航海条约在国际投资保护的内容发展⽅⾯可以分为两个阶段。

第⼆次世界⼤战之前，以美国为代表的西⽅国家与其他国家签订友好通商航海条约，以调整两国间友好通商关系，其中虽有关于外国商⼈及其资产和有关投资保护的条款，但其重点是保护商⼈，⽽不是⼯业投资者。

即此时这类条约内容不是以保护私⼈投资为重点。

⼆战以后，随着国际投资的迅速发展，为适应海外私⼈投资保护的需要，友好通商航海条约在整个内容结构上发⽣了较⼤变化，保护国际投资的内容更为明确化。

友好通商航海条约中涉及投资的内容⼤致有以下⼏个⽅⾯：（1）外国投资者的⼊境、旅⾏与居留；（2）个⼈基本⾃由权；（3）关于投资者的待遇标准；（4）关于外国投资者财产权的保护和尊重；（5）管理与经营企业的权利；（6）对外国投资者的税收待遇；（7）外汇管制与资⾦转移；（8）关于争议的处理与管辖权。

由于友好通商航海条约并不是专门的关于国际投资保护的双边条约，因⽽对于投资保护⽽⾔难免存在缺陷。

此类条约涉及范围太⼴，内容⼗分繁杂，不易推⾏，亦不符合国际经济条约专门化、具体化发展的趋势；其带有“结盟”性质的政治意味使不少发展中国家戒⼼深重；⽽其中有关保护外资的条⽂相对笼统且“门槛”过⾼，⼜⽆程序上的保障，使实体性规定难以得到严格执⾏。

因此，美国等国家后来开始转变态度，不再推⾏友好通商航海条约这⼀模式，⽽是订⽴专门保护国际投资的双边投资保证协定，从⽽结束了友好通商航海条约的时代。

国际贸易条约与协定的种类1.自由贸易协定１.１区域性自由贸易协定1.１.1 欧洲自由贸易协定(eｆＴa)1.１．2 北美自由贸易协定(NaｆTa)1.1.3 亚太自由贸易协定(ｆTａaP）1.2 双边自由贸易协定1．2.1 美国-加拿大自由贸易协定（USＭca）1.2.２英国-欧盟自由贸易协定2.关税和贸易总协定2.１ gaTT 19472.２ gaTＴ 199４2.3 世界贸易组织协定３.投资协定3．1 双边投资协定(biT)3.2 多边投资协定(MｉT)3.3 区域性投资协定（ＲｉT)4.货物贸易协定4.1 上海合作组织贸易协定（ＳcO)4.2 东盟自由贸易协定(afTa)4.3 欧盟-经济伙伴关系协定4.4 中日韩自由贸易协定（cgkfＴa）5.服务贸易协定5．1 区域全面经济伙伴关系协定(RceP) 5．2 印太太平洋伙伴关系协定（TPP)５.3 东盟经济共同体协定(aec)6．知识产权协定6.1 世界知识产权组织版权条约６.2 世界知识产权组织专利合作条约附件:附件１：ｇａTT 194７全文附件２:gaTＴ１9９4全文附件３:世界贸易组织协定全文法律名词及注释：1．自由贸易协定（free Traｄe ａgｒｅemenｔ,fＴａ)：由两个或多个国家签署的协议,旨在通过减少关税和贸易壁垒,促进自由贸易和经济合作。

2．区域性自由贸易协定(Regiｏnaｌｆrｅe Trade ａgreement）：限于一定区域内的自由贸易协定，旨在促进区域内成员国之间的贸易自由化。

3.双边自由贸易协定（bilateraｌｆreｅ Traｄe agreement):仅涉及两个国家之间的自由贸易协定，旨在促进双方之间的贸易自由化。

4.关税和贸易总协定（genｅrａl agreｅｍｅnｔｏn Ｔarifｆs ａｎd Tradｅ,gaＴT)：国际贸易的多边协定体系，旨在通过降低关税和贸易壁垒来促进全球贸易自由化。

5.世界贸易组织协定(aｇreements of tｈe Ｗｏrld Trａde Oｒgaｎｉzaｔiｏn,ＷＴO ａgｒeemeｎｔs）：包括gaＴT协定在内的所有世界贸易组织的协定。