Resolve legal uncertainties in investment deals: Experts

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.