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18 Melb. J. Int'l L. 407 (2017)
Chinese Investment in Australia: A Critical Analysis of the China-Australia Free Trade Agreement

handle is hein.journals/meljil18 and id is 429 raw text is: CHINESE INVESTMENT IN AUSTRALIA: A CRITICAL ANALYSIS OF THE CHINA-A USTRALIA FREE TRADE AGREEMENT WEIHUAN ZHOU * The China-Australia Free Trade Agreement ('ChAFTA') reflects the latest development of trade and investment rules in regional economic integration and is of significance to the future development of the international economic legal order. Through a critical analysis of the major ChAFTA rules on investment protection and liberalisation, this article argues that the positive impact of these rules on Chinese investment in Australia has been overstated. These rules, as they currently stand, may not create sufficient incentives for or boost the confidence of Chinese investors. Chinese investment in Australia will continue to be influenced by the investment policies and needs of China as a capital exporter and Australia as a capital importer. However, the recent agreement of the two governments to commence the review of these rules in 2017 shows their commitment to further developing these rules to achieve a higher level of investment protection and liberalisation. CONTENTS I Introduction.................. ....................... ..... 407 II Chinese Investment in Australia: An Overview .................. ..... 409 III ChAFTA Negotiations on Investment .................................. 414 IV Investment Protection and Liberalisation under the ChAFTA ......... ....... 417 A Non-Discrimination .............................. ...... 417 B FIRB Approval .................................. ...... 420 C ISDS .......................................... ..... 426 D Investment Facilitation and Movement of Temporary Workers .............. 429 V Concluding Remarks: The Outlook for Chinese Investment in Australia ............ 432 I INTRODUCTION This article explores the regulation of investment under the China-Australia Free Trade Agreement ('ChAFTA'),I which entered into force on 20 December 2015. It offers a critical analysis of the major rules on investment protection and liberalisation that impact on Chinese investment in Australia. It takes the position that the ultimate goal of these rules is to induce two-way investment and an analysis of the rules as such would not be sufficient to determine the effectiveness and impact of the rules in that regard. Therefore, while the article discusses the approaches that the ChAFTA takes to regulating and liberalising the bilateral investment, it focuses on studying whether the ChAFTA would actually Senior Lecturer and Member of China International Business and Economic Law ('CIBEL') Initiative, Faculty of Law, UNSW Sydney. Email: weihuan.zhou@unsw.edu.au. The author is grateful to Professor Wenhua Shan for valuable comments and Ms Huiqin Jiang for research assistance. Any errors or oversights are my own. All websites cited are current as of 15 September 2017. 1 For a comprehensive volume on the ChAFTA and its regulation of some of the most cutting edge issues such as trade in services, investment and digital trade, see Colin Picker, Heng Wang and Weihuan Zhou (eds), The China Australia Free Trade Agreement: A 21st Century Model (Hart, 2017). A brief overview of the book is available at: <www.bloomsbury.com/au/the-china-australia-free-trade-agreement-9781509915385/>, archived at <https://perma.cc/6VQL-W6ZK>. 407

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