CAFLL-WestPac Recap: BIT by BIT: Researching Chinese Bilateral Investment Treaties

By: Barbara Swatt Engstrom

China Africa News

Introduction:

Seattle University Law Professor Won Kidane is originally from Ethiopia and has a strong background in China-Africa investment relations.  In 2012, he published China-Africa Dispute Settlement: The Law, Culture and Economics of Arbitration, which evaluated existing mechanisms of dispute resolution in China-Africa economic relations.  In subsequent years, he focused on a particular institution for international investment dispute resolution: the International Centre for Settlement of Investment Disputes (ICSID).  In particular, he explored whether ICSID is an appropriate forum to handle the investment disputes stemming from an enormous increase in investment in Africa by China.  In analyzing the ICSID legitimacy debate, he created a framework to assess the suitability of ICSID arbitration for China–Africa investment dispute arbitration.  The outcome of this research project was his article: The China-Africa Factor in the Contemporary ICSID Legitimacy Debate.

As he was working on the project, Professor Kidane decided to delve more deeply into the bilateral treaties that provide the basis for the investment regime he was questioning.  He asked me to research and analyze all bilateral investment treaties (BITs) between China and African countries.

Background on Chinese BITs:

In order to do the analysis part of the project, I needed to get myself up to speed with BITs, generally, and Chinese BITs, in particular.  While BITs vary depending on the negotiating partners, countries use model BITs as starting points.  Historically, there are three generations of Chinese model BITs.  China’s first generation BITs (starting with its BIT with Sweden in 1982) are generally considered to be conservative.  They accord Most Favored Nation (MFN) status but not National Treatment (NT).  The availability of compensation for expropriation was recognized, but the legality of the expropriation was determined by local courts.  China’s second generation of BITs followed China’s accession to the ICSID convention in 1990.  In some of these BITs, the availability of investor access to ICSID arbitration was included but was often limited to the determination of the amount of compensation for expropriation.  The third and current model made both substantive and procedural changes. One of the most important substantive changes was the addition of National Treatment protection. The most important procedural change was unqualified access to international arbitration, including ICSID arbitration.

Research Strategies:

Once I had a very general understanding of Chinese BITs, I was able to much more effectively research and analyze the China Africa BITs for this project.  My main tips for researching BITs are as follows:

1) Start with the United Nations Conference on Trade and Development (UNCTAD) International Investment Agreements Navigator.  This database will give you a fairly comprehensive idea of what is generally available.  It has information on signatory and ratification dates and provides many full text treaties.

2) Use Target Countries’ International Trade Ministries. The English language page of China’s Ministry of Commerce (MOFCOM) has a database of Chinese BITs.  They had the full text of several BITs that were not available via the International Investment Agreements Navigator.

3) Use Print Materials for Older BITs. One of the very best English books for any project involving Chinese BITs is Gallagher and Shan’s Chinese Investment Treaties.  In addition to having great analysis, there are reprints of several BITs in the Appendix.  This was the only place to find the Seychelles –China BIT.  Another very useful print resource, especially for older BITs, is the looseleaf set: Investment, Promotion and Protection Treaties.  This is where I found the China-Mali BIT. Research guides can also be very helpful in pointing you to print sources, as can running searches in the Google Books database.

4) Advanced & Deep Web Searching. Searching Google for BITs can often lead to frustration for a couple of reasons: 1) A basic Google search only crawls the very top layers of websites.  It won’t find anything buried.  The solution is to go directly to the target website and use their search tool to go deeper. 2) BIT is a generic term.  Although the titles vary, BITs generally have the terms “promotion and protection of investments” in them somewhere. It will help if you have model treaty language that you can track.  I also like to use the site search in Google. The advance Google search: Tanzania promotion protection investment site:mofcom.gov.cn brought up the Tanzania-China BIT which was not available in the MOFCOM Bilateral Investment Treaty database.

5) Contact Experts. While attending the ASIL conference in Washington, D.C., I stopped by the Law Library of Congress and met with several of their country specialists.  One of the China specialists found the China-Sierra Leone BIT tucked away in the AsianLII database – a place it had not occurred to me to look.

Additional Resources:

CAFLL-WestPac Recap: Continuing Education for Law Librarians and Demand-Driven Service Innovation in China

By Alex X. Zhang

CAFLLThis blog post highlights a panel discussion on two major and long-standing issues: continuing education for law librarians and demand-driven service innovation in law libraries. Both issues are important and deserve close attention in the law librarianship and legal information field. Michael Chiorazzi, Dean and Professor of Law at the Daniel Cracchiolo Law Library, University of Arizona Rogers College of Law, shared his insights on continuing education for law librarians. More specifically, he critiqued major formats and platforms that deliver continuing education content to users such as webinars, continuing education classes through colleges, workshops, networking events, etc. He emphasized the value of individual scholarship in continuing education and advocated for more sabbaticals for law librarians, claiming “they refresh and invigorate one’s enthusiasm for the profession.” He also shared his experience with managing the Law Library Fellowship program offered through the University of Arizona’s School of Information and experience teaching undergraduates legal research classes at the University of Arizona, which is the only law school in the United States that offers an undergraduate law degree. Continuing education is important in all professions and, needless to say, is necessary and essential for law librarians. Unfortunately, there has not been much discussion on what works and what does not work for the law librarians. Dean Chiorazzi’s talk challenged us to think more in depth of the topic, or in his own words, “how do we know what we need to know?”

Dr. Liu Ming, Associate Director of the Law Library of Renmin University of China, tackled an equally important problem in the law librarianship field, which is demand-driven service innovation in China. Dr. Liu Ming took a new angle and introduced us a new perspective looking at the issue that has otherwise been extensively discussed. She employed KANO theory to examine the user demands in Chinese Law Libraries and how Law Libraries in China have tried to meet user needs in three different levels. The KANO model was first introduced by Professor Noriaki Kano of Tokyo Rika University. The model was based on the valid assumption that customer needs are constantly changing and the question becomes how to meet patron’s ever-changing demands. Dr. Liu summarized demands of Chinese law library patrons under three levels: basic needs, performance and excitement demands. She argued that currently, most Chinese academic law libraries meet the basic needs of library patron, but need to further enhance the user satisfaction and promote the law libraries’ status as a legal information center as opposed to a place to collect and house books.

IALL Recap: The Mediation Committee of the Bundestag and Bundesrat: A Special Institution of German Constitutional Law

By Jennifer Allison

On Monday, September 21, the afternoon session of the 2015 IALL Annual Course focused on the Mediation Committee of the Bundestag and Bundesrat.

First, we heard a lecture on this topic at the Staatsbibliothek zu Berlin by Claus Dieter Koggel. Mr. Koggel is an administrative officer (Ministerialrat in der Sekretariat) for the Bundesrat, one of the two houses of the German Parliament.

JA1Mr. Koggel discussed the history and work of the Mediation Committee (Vermittlungsausschuss), which is a constitutionally-mandated body (established under Article 77 of the Basic Law) that provides a forum for resolving conflicts that arise during the legislative process between the Bundesrat and the other parliamentary house, the Bundestag.

The Mediation Committee is comprised of 16 members of each house. Often these members are experienced parliamentarians with a wide range of knowledge and experience, and they are valued for their ability to think independently while also respecting the positions of their respective political parties.

Under the German Parliament’s legislative process, bills are first considered in the Bundesrat, whose membership consists of members that represent each of the sixteen German states (Länder). After a bill has been passed in the Bundesrat, it is sent to the Bundestag, which then passes its own version and sends it back to the Bundesrat. At that point, if the Bundesrat refuses to pass the Bundestag’s version of the bill, the Mediation Committee is convened to attempt to work out the differences and produce a single, passable version of the bill that can be enacted into law.

Mediation Committee meetings are strictly confidential: the only people allowed to be present during them are the members of the committee, two lawyers, and a stenographer. In addition, if a majority of the membership agrees to it, expert witnesses can be admitted to give testimony.

Once Committee members agree to a compromised version of the bill, it is published immediately online and introduced to both houses for another vote.

The frequency with which the Mediation Committee has been required to convene in it relatively recent history has varied, depending largely on whether the government was headed by the opposition party to that which held the majority in the Bundesrat .

JA2During one session particularly contentious session of Parliament in the past, the Committee was convened for 100 out of the 400 bills considered. That particular Committee enjoyed an 88% success rate, as only 12 bills of the 100 they considered failed to pass after the Committee’s deliberations.

The current parliament only recently convened the Committee for the first time, despite being two years into its session, as they have made a greater attempt to compromise on their own before attempting mediation.

After Mr. Koggel’s lecture, IALL attendees visited the Bundesrat building in person. We were treated to a tour from a very informative and enthusiastic member of the Bundesrat’s administrative staff. She showed us the plenary chamber, where the Bundesrat meetings take place, and discussed the finer points of the plenary procedure.

JA3Following this, we were taken to the Mediation Committee’s meeting room, where were once again met by Mr. Koggel. He took great care to point out certain interesting and useful features of the room, such as the power window shades, which were installed to prevent the prying eyes and long-range camera lenses of the media in adjoining buildings from eavesdropping on the compromises that were taking place during the secret Committee sessions.

Mr. Koggel pointed out during both of his presentations that the Mediation Committee has been the recipient of both praise and criticism in Germany. While it has been lauded as an innovated and positive way to resolve legislative conflicts and arrive at a compromise, it has also been characterized as “a mysterious dark room of legislation.”

JA4Perhaps both of these are true. But it is firmly established as a component of the legislative process, and in addition to its constitutional mandate, the Committee is also influenced by established best practices, parliamentary law, and the judicial decisions of the Federal Constitutional Court (Bundesverfassungsgericht).

In the U.S., so many battles between Republicans and Democrats in Congress end up being played out in the media, and politicians often appear to be more motivated by scoring points with voters in upcoming elections than by achieving legislative success.

It struck me during the program that maybe this Mediation Committee would be a valuable import for the U.S. Congress to consider, so much so that I ended up tweeting about it. However, I have to admit that I’m skeptical that an organization like this could ever be considered, let alone work, in our government.

IALL Recap: Legal Blogs as a Means to alter Scientific Communication Structures and Legal Research: Insights from Verfassungsblog’s Research Project

By Teresa Miguel-Stearns

Humbolt University Berlin, Faculty of Law

Humbolt University Berlin, Faculty of Law

Researcher Hannah Birkenkotter, of Humboldt University Berlin, gave a fascinating presentation on the various types of German legal blogs and their effects on German society. She acknowledged that she and her fellow researchers do not know exactly who is reading the blogs, and that although blogs are not yet firmly entrenched in the establishment, they are genre that provides a valuable space for experimentation and the exchange of ideas. Birkenkotter described two types of blogs:

  1. External alteration blogs: to spread ideas and alter scientific discussion
  2. Internal alteration blogs: to shake up academic institutions and structure

In 2009, legal journalist Maximillian Steinbeis, started blogging to report on constitutional law developments in Germany. The intended audience of Verfassungsblog is the general public and the desired outcome is to shape and affect policy. The blog is primarily in English in an effort to reach a broad audience. Although Steinbeis is the solo owner and moderator of this “external alteration” blog, he has a long list of guest contributors including several U.S. law professors.

Humboldt University Berlin, Main Campus

Humboldt University Berlin, Main Campus

Several years ago Andreas Palos, then a practicing attorney, started a popular international law blog. It was short and informative with a clear opinion. Palos is now a sitting judge on the Federal Constitution Court and, therefore, no longer maintains this solo blog, but at the time it was a primary means of sharing developments in international law with the public who would not otherwise have timely, in depth, and easy access to such developments.

Several popular blogs are group projects where there is a pre-publishing peer review process allowing for a less formal forum for publishing one’s scholarship. One such blog is a group of young researcher in German public law who run Junge Wissenschaft im Offentlichen Recht, an “internal alteration” blog. This blog provides ample opportunity for up-and-coming scholars to express their ideas and get feedback from their peers through posted comments and responses.

Some of the most popular legal blogs in Germany are the following:

In sum, blogs in Germany, though not as prolific as in the United States, provide an important tool for scholars and experts to share developments in the law, exchange novel ideas and receive instant feedback, and educate the public in a timely, open fashion. Not so different from DipLawMatics Dialogues!

Humboldt University of Berlin, Main Campus

Humboldt University of Berlin, Main Campus

Introducing…Lyonette Louis-Jacques as the October 2015 FCIL Librarian of the Month

1. Where did you grow up?LyoWitch3

I spent my early childhood in Haiti. I have vague memories of mountains, jellyfish, market, L’Épée magique, and Mardi Gras celebrations. When I moved to the States, I thought Playland at Coney Island was the greatest thing, especially Skee-Ball.

2. Why did you select law librarianship as a career?

Richard Bowler. Dick was the director of the University of Chicago Law Library back then.  During and after college, I worked at the circulation desk in the evenings. Students would ask me questions like “where can I find F.2d?” and I wouldn’t know the answer.  Dick gave me a copy of Morris Cohen’s Legal Research in a Nutshell and I was off and running.  I found l liked answering reference questions and helping students.  So I decided to go to library school (University of Michigan) and law school (University of Chicago) to become a legal reference librarian.

As a pre-professional, I had the privilege of learning about law librarianship as a career from Margaret Leary, George Grossman, and Judith Wright.

3. When did you develop an interest in foreign, comparative, and international law?

On the job.  I had no plans to specialize in FCIL librarianship, but I needed a job after graduating from law school, and the University of Minnesota had two openings for a reference librarian, one with foreign language skills.  I applied and got my first professional position in 1986 as a foreign and international legal reference librarian.  I replaced Yugoslavia-born Joseph Levstik, who had been Foreign Law Librarian at Minnesota for 20 years (1964-1986).

Kathie Price was the director of the law library at the time and very involved in an AALL initiative to develop a new generation of FCIL librarians. The first generation of foreign, comparative, and international law librarians were mostly Europe-trained lawyers, and they were retiring or had passed away. How to replace their knowledge of foreign legal systems and legal bibliography?

I attended town meetings and workshops on how to train the future generation of FCIL librarians.  And then I participated in the educational programs created to train next generation FCIL librarians. I attended the five AALL/Oceana Institutes and co-edited (with Jeanne Korman) one of the resulting books.  The Institute books became training materials for future FCIL librarians:

  • Introduction to Foreign Legal Systems (Richard A. Danner & Marie-Louise H. Bernal eds., 1994)
  • Introduction to Transnational Legal Transactions (Marylin J. Raisch & Roberta I. Shaffer eds., 1995)
  • Introduction to International Organizations (Lyonette Louis-Jacques & Jeanne S. Korman eds., 1996)
  • Introduction to International Business Law: Legal Transactionsin a Global Economy (Gitelle Seer & Maria I. Smolka-Day eds., 1996)
  • Contemporary Practice of Public International Law (Ellen G. Schaffer & Randall J. Snyder eds., 1997).

As part of my new FCIL librarian training, Kathie Price arranged for me to travel to Europe for a practicum working with the United Nations depository library documents collection at the Library of the Walther-Schücking-Institut für Internationales Recht at Christian-Albrechts-Universität in Kiel, Germany. I also visited libraries in Heidelberg, Brussels, and Geneva.

I  apprenticed with Latvia-born Adolf Sprudzs, who was then Foreign Law Librarian at the University of Chicago.  Mr. Sprudzs taught me how to select FCIL materials.  Suzanne Thorpe and I taught the first International and Foreign Legal Research course at Minnesota, and teaching helped me hone my FCIL skills further.  And I learned substantive and bibliographic FCIL info/knowledge from working with international law faculty and attending AALL FCIL-SIS, ASIL, IALL, and other conference programs and workshops.

4. Who is your current employer? How long have you worked there?

I am presently Foreign and International Law Librarian & Lecturer in Law at the D’Angelo Law Library, University of Chicago Law School.  I have been since Judith Wright hired me in August 1992 to become Mr. Sprudzs’ successor. Judith was also a leader in the initiative to train the next generation of FCIL librarians. And I continue to try to follow her and Kathie’s lead in mentoring and helping train new FCIL librarians.

Mr. Sprudzs was President of IALL and a scholarly international law librarian.   I seek to follow in his footsteps.  I focus my scholarship on identifying gaps in international legal research tools and trying to fill them as well as sharing information about new FCIL research resources.  I also promote and support FCIL scholarship generally.

5. Do you speak any foreign languages?

English!  Really, sometimes I lose my English and have to go find it… I grew up speaking Haitian Créole, and learned French in school, so I theoretically speak both. And I took courses in Spanish and German in college.  I speak Spanish well enough to be understood, and a smidgen of German.

6. What is your most significant professional achievement?

I’m very proud of having compiled the Law Lists (1992-2005) guide to law, library, and law library-related listservs, Usenet newsgroups, and e-newsletters. It enabled me to connect with diverse people across the globe and to help them connect with each other. I am also thrilled that the Int-Law listserv which I co-founded in 1991 with Mila Rush while I was at Minnesota is still active and being used by law librarians and others worldwide who work with and research FCIL materials.

I enjoyed chairing the FCIL-SIS during its 10th anniversary celebration (July 1995).  And am grateful to my FCIL colleagues for honoring me with the 2014 Daniel L. Wade Outstanding Service Award.  I admire Dan so much for his continued service to our SIS.  He’s such a great mentor!

I love helping others create new tools and resources as well as continue old ones.  I’m glad to have updated Dan Wade’s original 1993 “List of Foreign and International Law Librarians Who Have Expressed a Willingness to Help Non-Experts” with the Jumpstart guide.  This directory of people willing to help answer FCIL research questions by jurisdiction/region and topic is now being updated and maintained by Mary Rumsey.  If you have special expertise or willingness to help in researching the law of a particular country, international organization, or FCIL topic, please volunteer!

7. What is your biggest food weakness?

Diet Coke.

8. What song makes you want to get up and sing/dance?

Any good doo-wop tune.  The Del Satins’ Remember (1961).  Pink Martini.  Konpa/Kompa/Compas (especially Tabou Combo). Salsa.  Bachata.  Merengue. (I like Señor Priego’s Échale Salsa mix)  Big Pun’s ode to Puerto Rico – 100% (edited language version). Funk.

9. What ability or skill do you most wish you had (that you don’t have already)?

I wish that I could clone myself.  One Lyo would sleep all day and watch movies.  A couple of others would travel the world and learn new languages.  One will write a popular bestseller and become a kazillionaire.  One would be a trucker.  I wonder if I could get myself to stop cloning at five Lyos?

10. Aside from the basic necessities, what is one thing you cannot go a day without?

Besides Diet Coke?  The Internet, particularly Twitter.

11. Anything else you would like to share with us?

I really enjoy being an FCIL librarian.  Having a specialty enables to you master an area even if you’re continually learning new things.  I also think being a generalist legal reference librarian is quite interesting and challenging too.  In my job, I get to do both general reference as well as specialize. The best of both worlds.  I never get bored.  And, since I’m still trying to improve, I always have a goal…

I enjoy meeting new people who enter the field and finding out what unique skill or life experience they bring to the mix.  Looking forward to meeting all of y’all at the 2016 AALL conference in Chicago!