5 Monetary Transfer

Subject(s):

Jurisdiction

The transfer or repatriation of funds provision in bilateral investment treaties (BITs) is at the heart of the object and purpose of an investment treaty. The main aim of BITs is to encourage investment by investors of one state into the other state. This chapter discusses the types of payments covered in the repatriation provisions in China's BITs. It includes the scope of the clause and whether it covers both outward and inward transfer of funds. It looks at the types of payments that are covered by the transfer provisions and whether it is an illustrative list or an exhaustive one. It then considers the important provision on convertibility and exchange rates, what they mean, and when they are designated. Finally, the chapter looks at provisions typical to China's BIT provisions on transfer of funds, in particular the limitation on monetary transfers to compliance with “domestic laws and regulations.” The chapter also considers briefly the impact of the pending litigation before the ECJ against several member states on the scope of the transfer provisions in some of their BITs (including some with China) entered into before acceding to the EC Treaty.