“National security” has always played a role in foreign direct investment decisions. Large-scale Chinese investment has, however, served to highlight the question of what the concept involves, as developed countries, the traditional outbound investors, extend or rethink their approach to foreign acquisitions. But is it – or should it be – a concept of unlimited flexibility? In discussing this question, this talk will consider a number of aspects of “national security” in the context of Chinese outbound investment and investment into China. In particular, it will examine what “national security” means to China in relation to activities within China, particularly investment and what it means to foreign governments when Chinese companies go abroad: that is, in what way does Chinese investment, in particular, threaten the national interest or security of a western country? It will also consider in what way and to what extent national security concerns constitute an exception from commitments made to and by China in its free trade and investment treaties and, in particular, whether states have unlimited discretion to define the term.
About the speaker
Vivienne Bath is Professor of Chinese and International Business Law at Sydney Law School and Director of the Centre for Asian and Pacific Law at the University of Sydney. Her teaching and research interests are in international business and economic law, private international law and Chinese law. She has first-class honours in Chinese and in law from the Australian National University, and an LLM from Harvard Law School. She has also studied in China and Germany and has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region. Representative publications include: R Burnett and V Bath, Law of International Business in Australasia (Sydney, Federation Press 2009); V Bath, ‘Foreign investment, the national interest and national security – foreign direct investment in Australia and China,’ (2012) 34 Sydney Law Review 5-34, “Overlapping Jurisdiction and the Resolution of Disputes before Chinese and Foreign Courts,” (2015-2016) 17 Yearbook of International Private Law 111-150 and “The South and Alternative Models of Trade and Investment Regulation – Chinese outbound investment and approaches to international investment agreements” , in Fabio Morosini and Michelle Ratton Sanchez Badin (eds), Recalibrating International Investment Law: Global South Initiatives, Cambridge University Press, 2018.