Re­solve le­gal un­cer­tain­ties in in­vest­ment deals: Ex­perts

China Daily (Hong Kong) - - CHINA - By SHADOW LI in Shen­zhen stushadow@chi­nadai­lyhk.com

Law ex­perts have called for clar­i­fi­ca­tions and bet­ter un­der­stand­ing of how the bi­lat­eral in­vest­ment treaties (BITs) con­cluded by the cen­tral gov­ern­ment can be ap­plied in Hong Kong, say­ing le­gal am­bi­gu­i­ties have to be re­solved with in­creas­ing trade and eco­nomic ac­tiv­i­ties in Hong Kong aris­ing from the Belt and Road (B&R) Ini­tia­tive and the Guang­dongHong Kong-Ma­cao Greater Bay Area plan.

They made the re­marks at a law con­fer­ence in Shen­zhen on Sun­day, jointly or­ga­nized by the Min­istry of For­eign Af­fairs and Shen­zhen Univer­sity, to com­mem­o­rate the 20th an­niver­sary of China’s re­sump­tion of the ex­er­cise of sovereignty over Hong Kong.

Zhou Lulu, di­rec­tor-gen­eral of the Depart­ment of Treaty and Law at the Of­fice of the Com­mis­sioner of the Min­istry of For­eign Af­fairs of the Peo­ple’s Repub­lic of China in the Hong Kong SAR, noted a press­ing need to spell out the am­bi­gu­i­ties as the B&R gains mo­men­tum, and in­vest­ments by Hong Kong com­pa­nies and in­di­vid­u­als are ex­pected to span the scores of coun- tries and re­gions in­volved in the intercontinental project.

Hong Kong, to this day, has few BITs with most B&R coun­tries and re­gions, and there’re le­gal un­cer­tain­ties over Hong Kong’s prospec­tive in­vest­ments, she said.

Also, with the na­tion’s on­go­ing strat­egy en­cour­ag­ing en­ter­prises to “go out”, many re­lated Hong Kong busi­nesses and in­vest­ment di­vi­sions will be con­cerned about or greatly af­fected by these am­bi­gu­i­ties, she con­tin­ued.

To date, the cen­tral gov­ern­ment has con­cluded 104 BITs with other na­tions and re­gions. Hong Kong has so far signed nine BITs, some sealed be­fore the han­dover in 1997. The Ba­sic Law has stip­u­lated an es­tab­lished rule for Hong Kong in con­clud­ing bi­lat­eral agree­ments with other economies.

For ex­am­ple, Ar­ti­cle 151 of the Ba­sic Law stip­u­lates that the Hong Kong Spe­cial Ad­min­is­tra­tive Re­gion may on its own, us­ing the name “Hong Kong, China”, main­tain and de­velop re­la­tions and con­clude and im­ple­ment agree­ments with for­eign states and re­gions and rel­e­vant in­ter­na­tional or­ga­ni­za­tions in the ap­pro­pri­ate fields, in­clud­ing the eco­nomic, trade, fi­nan­cial and mon­e­tary, ship­ping, com­mu­ni­ca­tions, tourism, cul­tural and sports sec­tors.

In other ar­eas, the cen­tral gov­ern­ment has au­tho­rized Hong Kong, through the Ba­sic Law, to check with the cen­tral gov­ern­ment on a caseby-case ba­sis. The well-struc­tured sys­tem has seen Hong Kong con­clude a to­tal of 240 bi­lat­eral treaties with other coun­tries and re­gions in all as­pects.

Hong Kong’s deep­en­ing eco­nomic and trade ties also heighten the need for the SAR gov­ern­ment to strike more BITs with more coun­tries and re­gions, in ad­her­ence to the Ba­sic Law, said Paul Tsang Ke­ung, a law of­fi­cer with the In­ter­na­tional Law Di­vi­sion at the Depart­ment of Jus­tice of the Hong Kong gov­ern­ment.

The fact that the Hong Kong SAR can con­clude bi­lat­eral or mul­ti­lat­eral treaties or trade agree­ments with for­eign states and re­gions has demon­strated not only the char­ac­ter­is­tic of “one coun­try”, but also the ad­van­tage of the “two sys­tems” as­pect of the prin­ci­ple. It has greatly en­riched the con­tent and prac­tice of in­ter­na­tional law, said Tsang.

Hong Kong’s deep­en­ing eco­nomic and trade ties also heighten the need for the SAR gov­ern­ment to strike more BITs with more coun­tries and re­gions, in ad­her­ence to the Ba­sic Law.” Paul Tsang Ke­ung, law of­fi­cer with the In­ter­na­tional Law Di­vi­sion at the Depart­ment of Jus­tice of the Hong Kong gov­ern­ment

But the ap­pli­ca­bil­ity of BITs in Hong Kong signed by the cen­tral gov­ern­ment be­comes a chal­lenge that has emerged dur­ing the im­ple­men­ta­tion of “one coun­try, two sys­tems”.

How to han­dle na­tional bi­lat­eral treaties or whether they are ap­pli­ca­ble to Hong Kong is also a new facet in the im­ple­men­ta­tion of “one coun­try, two sys­tems” and a new sub­ject for the in­ter­na­tional law com­mu­nity, Tsang added.

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