Abstracts Category : Other

Does Australias foreign Investment Review System discriminate against Chinese government investors? A doctrinal, comparative and empirical review

by Huiqin Jiang

This thesis investigates the perception of discrimination against Chinese government investors, including State-Owned Enterprises (SOEs), under Australias foreign investment review system (FIRS). Previous research has failed to define discrimination in the FIRS context, and lacks comparative and empirical foundation. This thesis fills these gaps by distilling a definition of discrimination from international investment law practice and academic discourse. It also compares the treatment by the Australian government of Chinese government investors and Singaporean government investors (as discrimination can be discerned only by comparison), and examines the practical operation of FIRS through case studies and fieldwork interviews. Chinese State-Invested Enterprises (SIEs) and their investments, not those of SOEs, are observed for evidence of the alleged discrimination, for the concept SOE is rather ambiguous. SIEs presents a clear-cut, confusion-free type of foreign investor to the Australian governments review process, the initial stage of which is the identification of foreign government investors.The research deploys doctrinal, comparative and empirical methods. Three factors that may influence the Australian governments final decisions on investment proposals were compared: the investment features of SIE investments from China and Singapore; the political regimes, legal infrastructures and economic landscapes of the three nations (China, Singapore and Australia); and the corporate governance differences embedded in the above three nations systems. The comparisons suggest that Chinese SIEs and their investments differ from those of Singapore, and that the differences between China and Australia are bigger than those between Singapore and Australia. These differences could justify the potential different and less favourable treatment of government investors/investments from China in comparison with those of Singapore. But since the decisions of the Australian government are made on reasonable grounds rather than merely on nationality, the conclusion is that the discrimination-perception is rather unjustified. (By definition in this thesis, discrimination is manifest when foreign investments attract different and less favourable treatment for reason alone of their nationality.)This thesis concludes by offering four suggestions for eliminating the discrimination perception. Future research can replicate the methods of this thesis in fresh comparisons of other nations investors/investments in the FIRS system, and thereby establishing a more comprehensive discrimination-specific database.Advisors/Committee Members: Kingsford Smith, Dimity, Law, Faculty of Law, UNSW, Picker, Colin, School of Law, University of Wollongong.