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b. Environmental Guidelines on Outbound Investments
China, as it became the second-largest economy and the largest greenhouse gas emmitor in the world, has received constant criticisms on its environmental protection regulations and enforcement. As its outbound investment undergoes a significant increase in the recent years, China is pressued on take moreresponsibilities on environmental protection.
As part of the effort, in 2013, China’s Ministry of Commerce and Ministry of Environmental Protection collectively promulgated the Environmental Protection Guidelines for Outbound Investment Cooperation. The Guideline “encourages” Chinese enterprises to fulfill their environmental protectionresponsibilities in a variety of aspects, including respecting the host countries’ religious beliefs, cultural traditions and national customs; developing environmental-friendly and resource-saving strategies; minimizing the impact of its business activities on local environment; providing safe working conditions for their employees; and observing the rights and interests of workers. While the goals stated in the Guidelines are progressive, the Guidelinesare of a non-binding nature. Therefore, the enforcement of the rules relies on Chinese enterprises’voluntarycompliance. That being said, even developed countries who have gone far ahead in environmental protection regulations have been unsuccessful in promulgating laws to impose enforceable obligations on domestic enterprises operating overseas. Therefore, according to the current state practices, the international community cannot rely on the home states of foreign investors in this aspect.
8. Conclusion
Lenovo is a multinational corporation that has separate legal entities established in various jurisdictions. However, China is where the parent company was incorporated. It is where the center of control and economic interest lies. Therefore, Lenovo should be considered a Chinese company in the application of international treaties, unless the relevant treaties provide otherwise.
In respect of international agreements, the WTO Agreements regulate international trade in goods and services and require its member states to put in place complying trade policies. In cases in which a breach of WTO obligations arises, Lenovo would have to rely on China to bring a complaint through the WTO dispute resolution mechanism. The ICSID Convention provides a more direct remedy for Lenovo when the host country infringes the company’s investment interests. Under the ICSID Convention, Lenovo can rely on a BIT signed between China and the host country to bring a ICSID claim, if the relevant BIT allows access to the ICSID mechanism.
With respect to laws of commercial application, the CISG is the default rule governing international sales contract of goods between Lenovo and many Latin American countries. In the alternative, the ICLAIC may provide guidance as to which domestic law applies to the sales contract in question. By virtue of the New York Convention, a commercial arbitral award is in theory readily enforceable in many Latin American countries. In addition, Lenovo can enforce a valid and final judicial decision made by a Chinese court in some Latin American countries as well.
As to laws of public policy application, there are many regulations that Lenovo must pay attention to, which this article is unable to discuss in detail. Relevant issues includeprotection of intellectual property rights, environmental regulations, labor standards, competition law considerations, exchange controls, tax, etc.
Lastly, each country has their domestic laws governing the activities of foreign investors, which may impose market entry restrictions or foreign ownership caps. China has also been regulating its outbound investment through a record-filing system.
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