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1. Introduction介绍
过去几年，中国与拉美之间的商业和政治关系得到了显着加强。贸易是两个地区之间不断增长的经济关系的核心组成部分。随着贸易量的迅速增加，中国对拉美的外国直接投资也出现了急剧增长。一个代表性案例是联想进军拉美市场。
The commercial and political ties between China and Latin American have strengthened significantly in the past years. Trade is a central component of the growing economic relationship between the two regions. Along with the rapid increase in trade volumes, Chines foreign direct investment in Latin American has also undergone a dramatic increase. A representative case is Lenovo’s expansion into the Latin American market.
联想集团有限公司是一家中国跨国科技公司，总部位于中国北京和北卡罗来纳州莫里斯维尔。它现在是世界上最大的个人电脑制造商和第三大智能手机制造商。这家跨国巨头目睹了国际市场的强劲增长，拉丁美洲的增长是一个重要的推动力。具体而言，在2017年第一财季，该公司的移动业务集团在该地区实现了56％的增长率。Lenovo Group Ltd. is a Chinese multinational technology company with headquarters in Beijing, China and Morrisville, North Carolina. It is now the world’s largest manufacturer of personal computers and the third largest manufacturer of smart phones. The multinational giant has been witnessing robust growth in international markets, with gains derived from Latin America a significant driving force. Specifically, in the first financial quarter of 2017, the company’s Mobile Business Group achieved a growth rate of 56 percent in the region.
本文旨在以联想在拉丁美洲的商业活动为例，说明中国在该地区的投资和贸易活动是如何受到监管的。它将首先讨论联合国这个跨国实体的国籍是如何根据国际法确定的。随后，它将审查适用于联想在拉丁美洲的商业存在的多边，区域和双边协议。第三，本文将讨论商业应用法律，特别关注合同的国际销售。此外，它还将利用该地区最大的经济和消费市场巴西作为例子，说明巴西国内法如何规范外国投资者的活动。最后，本文将考虑中国如何规范其境外投资。This article aims to use the commercial activities of Lenovo in Latin America as an example to illustrate how Chinese investment and trade activities are regulated in the region. It will first discuss how the nationality of Lenovo, a multinational entity, is determined under international law. Subsequently, it will examine the multilateral, regional and bilateral agreements applicable to Lenovo’s commercial presence in Latin America. Third, the article will discuss laws of commercial application, with a particular focus on international sales of contracts. Further, it will use Brazil, the largest economy and consumer market in the area, as an example to illustrate how Brazilian’s domestic law regulates the activities of foreign investors. Lastly, the essay will consider how China regulates its outbound investment.
2. The Nationality of Lenovo
An international treaty, no matter whether it is of a multilateral, regional or bilateral nature, generally only binds the nation states that are a party to the agreement. Therefore, before we begin our analysis of the laws and regulations governing Lenovo’s business activities in Latin America, it is necessary to determine the nationality of this giant group.
The origin of Lenovo traced back to a small venture established in 1984 in Beijing, China. Lenovo Group Ltd. was incorporated in Hong Kong and has been listed on the Hong Kong Stock Exchange since 1996. In 2004, Lenovo acquired the Personal Computing Division of the International Business Machines Corporation, or IBM, which brought the first personal computer in the world. At present, Lenovo Group has headquarters in both China and the United States. In light of its massive international expansion in the recent years, it would be inaccurate to describe Lenovo as a Chinese company or a company with a single nationality.
While we typically refer to a multinational company such as Lenovo as one entity, under international law, these companies are not considered one legal entity with multiple nationalities. Instead,they are in fact multiple entities among which each has their own nationality. Under this theory, multinational companies are comprised of multiple business entities established under different municipal laws under the control of a single decision-making center. Numerous tests have been developed in international legal regime as to how to determine the nationality of a corporation for the purpose of applying an international treaty, including the test of control, the test of incorporation, and the test of economic interest. Generally, the company must have a “close and permanent” connection with the state of which it is a national.
Lenovo was incorporated in Hong Kong. One of its two headquarters is in China. Half of its management team is located in China. The facts show that the Group has a close and permanent connection with China and should be recognized as a Chinese company under international law. Nevertheless, if the international treaty in question specifically provides how a business entity’s nationality should be determined, the rule must be observed.
Regardless what the conclusion would be, this article is solely confined to discussions in respect with regulation of Lenovo’s business activities in Latin America as a company based in China.
It is also to be noted that, while Lenovo was incorporated in Hong Kong rather than the Mainland China, international treaties and agreements entered into by the People’s Republic of China generally applies to Hong Kong, a Special Administrative Region(hereinafter referred to as the “SAR”) of the PRC.
Article 13of the Basic Law of the Hong Kong SAR provides that the Central People’s Government shall be responsible for the foreign affairs relating to autonomous region. In light of the “One Country, Two Systems” principle, if a treaty by virtue of its nature should apply to the entire territory of a signatory state, it must be applied to the Hong Kong SAR. Specifically, foreign affairs are a key aspect signifying national sovereignty and unity. Therefore, as a general rule, all treaties, which are within the scope of foreign affairs and are signed and ratified by China, are applicable to the Hong Kong SAR.
3. International Agreements Applicable to Lenovo’s Presence of Latin America
a. WTO
The World Trade Organizations (hereinafter referred to as the “WTO”) is the primary international mechanism regulating trade on goods and services. The majority of Latin American countries are member states of the WTO. The WTO Agreements are aimed to lower protectionist barriers in trade and investment, which to some extent safeguards Lenovo’s access to the Latin American market.
The General Agreement on Tariffs and Trade (hereinafter referred to as the “GATT”) governs issues include tariffs, quotas and subsidies. Treatment on foreign direct investment is largely uncovered by the GATT. Instead, the General Agreement on Tariffs and Trade (hereinafter referred to as the “GATS”) likely governs Lenovo’s direct investment in Latin America. Under Article I of the GATS, trade of services is divided into four modes: cross-border services, consumption abroad, movement of natural persons and commercial presence. The mode of commercial presence bears the most relevance to Lenovo’s business activities in Latin America since the Group has established permanent establishment in multiple countries, which include two manufacture centres set up in Brazil and Mexico.
b. ICSID
The Convention on the Settlement of Investment Disputes between States and Nationals of other States (hereinafter referred to as the “ICSID Convention”) serves as an international protocol in resolving disputes arising from foreign direct investment. Under the Convention, the International Centre for Settlement of Investment Disputes (hereinafter referred to as the “ICSID”) was established as an independent forum to deal with international investment arbitration. Article 25(1) of the ICSID Convention states that ICSID has the jurisdiction to hear a dispute that arises out of an investment of the dispute is between a contracting state and a national of another contracting state and the parties have consented in writing to submit the dispute to ICSID.
Over half of Latin American countries are contracting states of the ICSID Convention. A Chinese investor may rely on a Bilateral Investment Treaty (hereinafter referred to as the “BIT”) between China and a Latin America country to bring an ICSID claim, if the relevant BIT offers foreign investors access to the ICSID mechanism.
The majority of Latin American countries have consistently resisted the ICSID Convention on the ground that the mechanism favors investors. So far, Bolivia, Ecuador and Venezuela have denounced the ICSID Convention, being the only three counties that have done so. Nevertheless, the ICSID mechanism remains to be the primary forum for a foreign investor in Latin America to protect their investment interests. |
