10.6092/issn.2531-6133/9820
Presentation at the 17th International Conference in Commemoration of Professor Marco Biagi, "The Collective Dimensions of Employment Relations: Organisational and Regulatory Challenges in a World of Work in Transformation", March 18th-19th, 2019, Marco Biagi Foundation - University of Modena and Reggio Emilia (Modena, Italy).   
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Ronald C. Brown
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International Labor Cooperation EU and China
Eu-China Bit and FTA Enhance Labor Cooperation and Protection
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Ronald C. Brown
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Eu-China Bit and FTA Enhance Labor Cooperation and Protection
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CONFERENCE PAPERS                                                         https://doi.org/10.6092/issn.2531-6133/9820




    Eu-China Bit and FTA Enhance Labor Cooperation and
                         Protection

                                              RONALD C. BROWN †


TABLE OF CONTENTS: 1. Introduction; 2. Pathways to EU-China FTA, BIT, Labor Cooperation,
and Increased Labor Protections; 2.1. Trade and FDI; 2.2. Pathways to EU-China BIT and
FTA.; 3. EU and China Labor Protections in BITs and FTAs; 3.1. BITs; 3.2. FTAs; 4. Labor
Cooperation; 5. Conclusion.

CONFERENCE & MEETING PROCEEDING: Presentation at the 17th International Conference in
Commemoration of Professor Marco Biagi, “The Collective Dimensions of Employment
Relations:  Organisational and Regulatory Challenges in a World of Work in
Transformation”, March 18th-19th, 2019, Marco Biagi Foundation - University of
Modena and Reggio Emilia (Modena, Italy).

KEYWORDS: China; EU-China Free Trade Agreement; International Labor Cooperation EU and
China




                                       UNIVERSITY OF BOLOGNA LAW REVIEW

                                                   ISSN 2531-6133

                                                    [VOL.4:2 2019]

     This conference paper is released under the terms of Creative Commons Attribution 4.0 International License (CC-BY)



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         1. INTRODUCTION

An EU-China Free Trade Agreement (hereinafter FTA) and Bilateral
Investment Treaty (hereinafter BIT) can stimulate new labor protections
and collective labor union cooperation in Chinese and European Union
(hereinafter EU) workplaces, beneﬁtting individual workers. Not only will
it bring possible substantive improvements provided by the sustainability
provisions calling for compliance with I.L.O. labor standards, but most
importantly, the interface of EU trade unions with Chinese workers,
employers,      and the local All-China Federation of Trade Unions
(hereinafter A.C.F.T.U.), brought about by its accompanying labor
cooperation provisions and activities, will enhance workers’ rights.1 It
will also provide a measure of certainty with rules to guide the evolving
Belt and Road Initiative (hereinafter B.R.I.) across the New Silk Road.
         For example, the 2013 Switzerland-China FTA has minimal
protection of labour standards, but it includes a Memorandum of
Understanding on Labor (hereinafter M.O.U.) that commits to I.L.O. core
labor obligations and also states cooperative activities may, inter alia,
take place through dialogue, joint studies, and capacity building.2 Swiss
trade unions initially resisted the FTA but came to support it when it
determined the official linkages under the agreement to facilitate
cooperation between unions in Switzerland and China. It also have the
opportunity to educate the companies and workers regarding labor
†
     Professor of Law, University of Hawaii Law School, Honolulu, Hawaii (US),
    ronaldc@hawaii.edu.
1
  See Ronald C. Brown, Asian and US Perspectives on Labor Rights Under International
  Trade Agreements Compared, in GLOBAL GOVERNANCE OF LABOR RIGHTS: ASSESSING THE
  EFFECTIVENESS OF TRANSNATIONAL PUBLIC AND PRIVATE POLICY INITIATIVES 83, 96-112 (Axel
  Marx et al. eds., 2015).
2
  MEMORANDUM OF UNDERSTANDING ON LABOR AND SOCIAL SECURITY COOPERATION, AND THE
  ENVIRONMENTAL COOPERATION AGREEMENT BETWEEN THE PARTIES. FTA, China-Chile, art.
  108, Nov. 18, 2005.




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standards.3 Likewise, EU FTAs incorporate not only state commitments to
I.L.O. labor standards, but also to modes of labor cooperation.
        Labor cooperation and involvement arises from trade-related
activities and from Foreign Direct Investment (hereinafter FDI) in China
or in the EU. A current example of German trade union involvement is
with the Midea Group, a Chinese electrical appliance manufacturer, that
purchased Kuka, a German manufacturer of industrial robots and
solutions for factory automation.4 Within this arrangement, the IG Metall
Trade Union through its Works Council,5                       in tandem with other
stakeholders in China, promote worker beneﬁts and protections for the
Chinese workers.           It is reported that this engagement and labor
cooperation of IG Metall Trade Union with China and the A.C.F.T.U. has
been going on for some years.6 This is a cutting edge need in China’s
manufacturing industry (and other targeted industries) as China
promotes its Made in China 2025 Initiative, noted as “robot replaces
man”. This initiative has resulted large numbers of displaced workers and
the need for appropriate consideration of those workers, as well as the
retained, retrained, and the newly-hired workers.7                     In this case, the
experience and the expertise of the German trade union and its
3
  See Vasco Pedrina and Zoltan Doka, Switzerland-China Free Trade Agreement and
  Labour Rights, GLOBAL LABOUR COLUMN (Oct., 2014), http://column.global-labour-
  university.org/2014/10/switzerland-china-free-trade-agreement.html.
4
  See Jens Kastner, Layoffs cloud outlook for Chinese takeovers in Germany, NIKKEI ASIAN
  REVIEW (Jan. 30, 2018), https://asia.nikkei.com/Asia300/Layoffs-cloud-outlook-for-
  Chinese-takeovers-in-Germany (“Kuka was acquired by Chinese appliance-maker
  Midea Group, the world’s largest maker of home appliances, for approximately 4.6 billion
  euros in December 2016. In 2016, those acquisitions totaled nearly 13 billion euros, or
  5% of all industrial investment in Germany”). Kuka has also set up operations in China
  and there is concern by the IG Metal Workers Union that many of the German jobs will be
  moved to China. The Union protested recent layoffs at Kuka and Ledvance plants.
5
  L. Fulton, Worker representation in Europe.               Labor Research Department,
  WORKER-PARTICIPATION.EU       (2015)    https://www.worker-participation.eu/National-
  Industrial-Relations/Countries/Germany/Workplace-Representation (“Works councils
  provide representation for employees at the workplace and they have substantial powers
  – extending to an effective right of veto on some issues. Although not formally union
  bodies, union members normally play a key role within them”).
6
  See Anne Sander, German Trade Unions and China:               From Non-Interference to
  Cooperation?, EU-CHINA CIVIL SOCIETY FORUM (July 20, 2009) https://www.eu-
  china.net/uploads/tx_news/28_German_Trade_Unions_and_China_01.pdf.
7
  See Ronald C. Brown, Made in China 2025: Implications of Robotization and Digitalization on
  MNC Labor Supply Chains and Workers’ Labor Rights in China, 9 TSINGHUA CHINA L. REV. 186
  (2017).


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cooperation with the other stakeholders directly provides individual
workers’ beneﬁts and protections that would not have otherwise been
achieved.
         Another legal approach to bring labor cooperation is through
bilateral investment treaties (BITs) which are often absorbed into the
FTAs. While typically they do not themselves contain labor provisions,
the proposed EU-China BIT is reported to contain labor provisions.8
         In 2014, Chinese President Xi Jinping called for the EU and China to
“actively explore” a bilateral FTA.9 The EU-China connection is one of the
key corridors of China’s B.R.I..10                    There are many reasons and
opportunities why China and the EU should contemplate a EU-China
FTA.11 Current trade is $1.5 billion per day, and against a background in
which the United States is increasingly drawing into question its
commitment to free trade and the global commons. Furthermore, with
the uncertainty resulting from Brexit, there clearly exists a need for China
and the EU not only to increase the breadth and depth of their
8
   See generally EU and China Agree on Scope of the Future Investment Deal, EUROPEAN
   COMMISSION, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1435 (last updated Jan.
   15, 2016). (In 2016, the EU and China negotiators reached clear conclusions on an
   ambitious and comprehensive scope of the upcoming EU-China investment agreement
   and moved into a phase of speciﬁc text-based negotiations. The EU and China agreed
   in particular that the future deal should improve market access opportunities for their
   investors by establishing a genuine right to invest and by guaranteeing that they will not
   discriminate against their respective companies. The EU and China are also determined
   to address key challenges of the regulatory environment, including those related to
   transparency, licensing and authorization procedures, and to provide for a high and
   balanced level of protection for investors and their investments. The agreement will also
   include rules on environmental and labor-related dimensions of foreign investment).
 9
   China, EU Pledge to Consider Bilateral Trade Pact, INTERNATIONAL CENTRE FOR TRADE
   AND SUSTAINABLE DEVELOPMENT (Apr.               3, 2014), https://www.ictsd.org/bridges-
   news/bridges/news/china-eu-pledge-to-consider-bilateral-trade-pact.                 (“The EU
   and China agreed on Monday to consider the possibility of a bilateral trade pact, should
   their current negotiations for an investment deal prove fruitful. The announcement came
   as part of Chinese President Xi Jinping’s high-proﬁle visit to Brussels, which also saw
   the EU publicly support Beijing’s bid for joining talks on a plurilateral deal in services
   trade”).
10
   See THE STATE COUNCIL, Full text: Action plan on the Belt and road Initiative, ENGLISH.GOV.CN,
   http://english.gov.cn/archive/publications/2015/03/30/content_281475080249035.htm
   (last updated Mar. 30, 2015), (China’s State Council labels its “Silk Road Economic Belt
   and the 21st Century Maritime Silk Road Initiatives” as B.R.I.).
11
   See    Alicia    García-Herrero      et    al.,    EU–China      Economic       Relations   to
   2025    Building    a   Common       Future,     BRUEGEL.ORG     (Sept.          13,    2017),
   http://bruegel.org/wpcontent/uploads/2017/09/CHHJ5627_China_EU_Report_170913
   _WEB.pdf.



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 cooperation, but also to act more strategically in the way they relate to
 each other.12 Likewise, there is expanding FDI ﬂowing both ways between
 EU and China,13 with the promise of the new BIT increasing that ﬂow.
         Perhaps it is time for the EU and Chinese leaders to build on the
 existing EU–China 2020 Strategic Agenda for Cooperation, to quickly
 conclude on-going negotiations on their EU-China BIT, and to embrace
 substantive negotiations on an EU-China FTA? China is now the EU’s
 second-biggest trading partner behind the United States and the EU is
 China’s biggest trading partner. The resulting BIT and FTA could enhance
 trade and investment opportunities, as well as contribute to employment
 opportunities and rising labor standards, bringing with it increased labor
 cooperation and worker protections.                  There are recent precedents,
 discussed herein, indicating China is open to more substantive and
 cooperative labor provisions in their FTAs and BITs.
         This paper focuses on enhanced labor protections and collective
 labor cooperation under China and EU Members’ existing and proposed
 FTAs and BITs. Following the Introduction, Part II discusses the economic
 connections of trade and Foreign Direct Investment (hereinafter FDI)
 between EU and China and the pathways to further the relationship. Part
 III provides a legal comparison of their different approaches on labor
 protections, dispute resolution, and labor cooperation in FTAs and BITs.
 Part IV provides an analysis on the current and varying approaches of
 enhanced labor cooperation. Part V states the conclusion and suggests
 that the EU-China corridor of the new Silk Road could and should be
 paved with labor protections consistent with international labor
 standards and emanating from a EU-China FTA, with its accompanying
 labor cooperation activities that exist within and behind the legal terms.
12
   See Study on a New Era in EU-China Relations: More Wide Ranging Strategic
   Cooperation?, EUR. PARL. DOC. (PE 570.493) 12 (2018). See also Ronald C. Brown, A New
   Leader in Asian Free Trade Agreements? Chinese Style Global Trade: New Rules, No Labor
   Protections, 35 UCLA PAC. BASIN L. J. 1 (2017).
13
   García-Herrero et al., supra note 11. (“In 2015, the stock of EU FDI in mainland China (not
   including Hong Kong) amounted to e168 billion, and investment stock from mainland
   China in the EU was only e35 billion (e115 billion including Hong Kong), even though
   Chinese investment ﬂows into the EU have grown substantially in recent years”).



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         2. PATHWAYS TO EU-CHINA FTA, BIT, LABOR COOPERATION, AND INCREASED
      LABOR PROTECTIONS

     2.1. TRADE AND FDI

 China is striving to become a leader in globalism14 and is investing heavily
 in making it happen. One of the world’s largest projects, the B.R.I.15 is a
 primary driver of China’s development strategy. A key aim of the B.R.I. is
 to promote economic connectivity among countries in Eurasia by
 recreating the historic Silk Road by a land and a sea route along several
 corridors.     A growing number of FTAs, such as Comprehensive and
 Progressive Agreement for Trans-Paciﬁc Partnership and Comprehensive
 Economic and Trade Agreement, are already establishing new trading
 areas and, the fact EU and China each have FTAs with some of the same
 countries – e.g., South Korea; suggests that China should act promptly to
 set their rules of trade.16            Further pressures may come from the
 soon-to-be-completed US-Mexico-Canada FTA.17 China is now the EU’s
14
   See Brown, supra note 12.
15
   See THE STATE COUNCIL, supra note 10. (China’s State Council labels its “Silk Road Economic
   Belt and the 21st Century Maritime Silk Road Initiatives” as B.R.I., which is explained as
   follows:
             The Belt and Road run through the continents of Asia, Europe and
             Africa, connecting the vibrant East Asia economic circle at one end and
             developed European economic circle at the other, and encompassing
             countries with huge potential for economic development. The Silk
             Road Economic Belt focuses on bringing together China, Central Asia,
             Russia and Europe (the Baltic); linking China with the Persian Gulf
             and the Mediterranean Sea through Central Asia and West Asia; and
             connecting China with Southeast Asia, South Asia and the Indian
             Ocean. The 21st-Century Maritime Silk Road is designed to go from
             China’s coast to Europe through the South China Sea and the Indian
             Ocean in one route, and from China’s coast through the South China
             Sea to the South Paciﬁc in the other.
   See also H.E. Xi Jinping, Work Together to Build the Silk Road Economic Belt and the
   21st Century Maritime Silk Road: Speech by H.E. Xi Jinping, President of the People’s
   Republic of China, At the Opening Ceremony of the Belt and Road Forum for International
   Cooperation, XINHUANET (May 14, 2017), http://www.xinhuanet.com/english/2017-
   05/14/c_136282982.htm.
16
   See, supra note 12.
17
   Agreement between the United States of America, the United Mexican States, and
   Canada, Nov. 30, 2018. The three partners hope to sign and ratify it in 2019. The
   agreement also requires the three nations to give three-months’ notice if they start
   trade negotiations with a non-market economy (Art. 32.10), an indirect reference to
   China. The US can terminate its pact with Mexico or Canada if either of them strikes
   a deal with a non-market economy. See also Geoffrey Gertz, 5 things to know about


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second-biggest trading partner behind the United States and the EU is
China’s biggest trading partner. The resulting BIT and FTA could enhance
trade and FDI opportunities and contribute to China’s employment
opportunities and rising labor standards.


Trade

          In 2017, the EU continues to be China’s largest trading partner

          and China is the EU’s second biggest trading partner in trade in

          goods, after the US. China and Europe trade goods worth well

          over EUR 1.5 billion a day. Trade with China is worth a total of

          EUR 375 billion in terms of EU goods imports and EUR 198

          billion in terms of EU goods exports.           The EU continues to

          record a signiﬁcant trade deﬁcit with China, amounting to EUR

          176 billion in 2017.18

Even with the growing economic integration of EU and China, with China
being EU’s biggest source of imports and its second-biggest export
market, there is still much room for growth, especially in the areas of FDI
and services.19

          The European Union (EU) and China have much in common.

          Their GDPs (e14.72 trillion and e9.75 trillion, respectively, in

          2015) rank number two and number three in the world, behind

          the United States (e16.64 trillion). They are two of the most

          externally-integrated economies in the world, with annual

          international trade in goods and services of e15 trillion (e5

          trillion if only trade external to the EU is considered) and e4.75

          trillion, respectively, in 2015. Their annual bilateral trade in

   U.S.M.C.A., the new NAFTA, BROOKINGS (Oct. 2, 2018) https://www.brookings.edu/blog/up-
   front/2018/10/02/5-things-to-know-about-usmca-the-new-nafta/. See also, Trump
   has cleared deck for China trade war by striking new Nafta deal, says analyst, THE STRAITS
   TIMES (Oct. 2, 2018), https://www.straitstimes.com/world/united-states/trump-has-
   cleared-deck-for-china-trade-war-by-striking-new-nafta-deal-say.
18
   EUR. PARL. DOC. (PE 570.493) 12 (2018), supra note 12.
19
   See China, EUROPEAN COMMISSION, http://ec.europa.eu/trade/policy/countries-and-
   regions/countries/china/ (last updated May 7, 2019).




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          goods and services stood at e580 billion in 2015, with each

          being the other’s largest source of imports and second-largest

          export destination. . . . [M]any areas of economic interaction

          remain under-developed, including trade in services, levels of

          foreign      investment,       cooperation       on      industrial       and

          technological innovation, and ﬁnancial market integration.20

 An example of how EU-China trade often blends with FDI is illustrated
 below.

          Chinese ﬁrm CATL will build a battery factory in central

          Germany to supply the country’s key auto industry in its

          transformation toward electric cars, an investment hailed

          Monday by Chancellor Angela Merkel as a “new step” in

          Sino-European cooperation. . . . Industrial workers’ union IG

          Metall also hailed the deal, which it said could create around

          1,000 new jobs in the high-tech sector. Earlier Monday, luxury

          carmaker BMW had already announced that it had struck a 4.0

          billion-euro ($4.7 billion) deal to buy batteries from the

          Chinese giant, with 1.5 billion euros worth of sales in Germany

          and 2.5 billion in China.           BMW said the Chinese battery

          manufacturer would supply the cells for the electric Mini and

          for BMW’s upcoming “iNext” electric limousine, slated for

          production from 2021.21
20
   García-Herrero et al., supra note 11, at vi. (“Chinese imports of services grew at an average
   annual rate of more than 25 per cent between 2010 and 2015, and the EU’s trade surplus in
   services with China has been growing at an average annual rate of 37 per cent since 2010,
   reaching e11 billion in 2015. . . . Growing Chinese consumption, especially of services,
   has the potential to create new markets for European businesses, while rising Chinese
   investment in the EU, in addition to increasing EU GDP and employment, also provides
   Chinese companies with a platform to improve their global competitiveness”).
21
   China’s CATL to build ﬁrst EU electric car battery plant in Germany, PHYS.ORG (Jul. 9, 2018),
   https://phys.org/news/2018-07-china-catl-electric-car-battery.html.




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 FDI22
 Government information on EU-China FDI shows:

           Foreign direct investment (FDI) in Europe from China hit a

           record 65 billion euros (USD 79 billion) in 2017, thanks largely

           to ChemChina’s takeover of agribusiness company Syngenta

           for USD 43 billion in Switzerland in May 2017. Without that

           deal, Chinese FDI into Europe would have fallen by 22 %, to

           around USD 38 billion, according to Chinese authorities.23

 Chinese outbound FDI has dramatically swung toward Europe in the ﬁrst
 half of 2018; in the ﬁrst six months of the year, newly-announced Chinese
 mergers and acquisitions (hereinafter M&A) into Europe were $20 billion,
 with completed investments at $12 billion.24

           Sweden was the top European destination for Chinese

           investment in the ﬁrst half of 2018 with $3.6 billion, followed

           by the U.K. at $1.6 billion, Germany at $1.5 billion and France at

           $1.4 billion.   Automotive, health and biotech, and consumer
22
   See THE LEVIN INSTITUTE - THE STATE UNIVERSITY OF NEW YORK, What Are the Different Kinds
   of Foreign Investment?, GLOBALIZATION 101 (2017), http://www.globalization101.org/what-
   are-the-different-kinds-of-foreign-investment/. (“Foreign direct investment (FDI)
   pertains to international investment in which the investor obtains a lasting interest in
   an enterprise in another country. Most concretely, it may take the form of buying or
   constructing a factory in a foreign country or adding improvements to such a facility, in
   the form of property, plants, or equipment. FDI is calculated to include all kinds of capital
   contributions, such as the purchases of stocks, as well as the reinvestment of earnings
   by a wholly owned company incorporated abroad (subsidiary), and the lending of funds
   to a foreign subsidiary or branch. The reinvestment of earnings and transfer of assets
   between a parent company and its subsidiary often constitutes a signiﬁcant part of FDI
   calculations”).
23
   EUR. PARL. DOC. (PE 570.493) 12 (2018), supra note 12, at 14 (“Annual Chinese outbound
   foreign direct investment (FDI) in the 28 EU economies has grown from EUR 700
   million in 2008 to EUR 35 billion in 2017; whereas, EU investment in China is about
   EUR 10 billion annually”). See also Thilo Hanemann and Mikko Huotari, EU-China
   FDI: Working towards reciprocity in investment relations, MERICS PAPERS ON CHINA (May,
   2018), https://www.merics.org/sites/default/ﬁles/2018-08/180723.pdf (“According to
   Chinese authorities, in 2017 the main destinations for China’s merchandise exports
   remained the United States 19%; the EU 16%”). See also UNCTAD, World Investment
   Report 2018, https://unctad.org/en/PublicationsLibrary/.pdf.             See also EUROPEAN
   THINK-TANK NETWORK ON CHINA, Chinese Investment in Europe: A Country-level Approach,
   MERCATOR INSTITUTE FOR CHINA STUDIES (Dec., 2017), https://www.merics.org/en/about-
   us/programs/ecpu/etnc/chinese-investment-in-europe (“Chinese global FDI in 2016
   was at the top at $893 billion versus the U.S. in third place at $595 billion”).
24
   See Natasha Turak, China is investing 9 times more into Europe than into North America, CNBC
   (July 17, 2018).



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          products and services have become the top recipients for

          Chinese FDI in both the U.S. and Europe.25

 Because of a gap in investment openness between EU and China, concerns
 have been raised about detrimental economic impacts such as unfair
 competition and resulting market distortions and a sense among EU
 citizens and businesses that the playing ﬁeld between Europe and China is
 not level.26 This strengthens protectionist sentiment and fuels political
 backlash against economic engagement with China. Thus, the resolution
 of reciprocity concerns is critical for future EU-China economic relations
 and is,     of course part of the discussion in the EU-China BIT
 negotiations.27
         FDI brings about increased employment and thus possible labor
 impacts. In 2018 BMW in Germany reported that Chinese ﬁrm CATL will
 build a battery factory in Germany to supply it’s auto industry’s
 transformation to electric cars. German “industrial workers’ union IG
 Metall” also hailed the deal, which it said could create around 1,000 new
 jobs in the high-tech sector.28 Additionally, it is reported that “global
25
   Id.
26
   See Till Hoppe and Stephan Scheuer, Stopping the Chinese, HANDELSBLATT TODAY (June 19,
   2017) https://global.handelsblatt.com/companies/stopping-the-chinese-783166 (“The
   European Union is drawing up proposals [draft EU law] that will allow it to monitor and
   possibly block the takeover of European companies by state-owned Chinese businesses,
   but German car makers fear the law could hit their Chinese markets”). See also
   Norbert Häring et al., Warnings Over State Intervention in Kuka Deal, HANDELSBLATT TODAY
   (June 3, 2016), https://www.handelsblatt.com/today/companies/chinese-investment-
   warnings-over-state-intervention-in-kuka-deal/23538330.html.
27
   HANEMANN & HUOTARI, supra note 23, at 3-8. (“Chinese investments in Europe, especially
   in Germany, reveal a strong move toward market and asset-seeking investments.
   German companies acquired by Chinese investors, especially in the machinery industry,
   are often not only leaders in their ﬁelds, but also strongly focused on RD. This
   Investment Motive seems to be the predominant MA strategy of Chinese companies
   in Germany”). See also Dr. Margot Schüller, Globalisation of Chinese Companies,
   GIGA (2013),        https://www.giga-hamburg.de/de/projekt/globalization-of-chinese-
   companies.     See also FRANKFURT BUREAU, Factbox: Chinese investments in German
   companies, REUTERS (Feb.       26, 2018), https://www.reuters.com/article/us-daimler-
   geely-factbox/factbox-chinese-investments-in-german-companies-idUSKCN1GA1RO
   (for a partial list of Chinese companies FDI in Germany). See also Miriam Widman,
   Chinese Takeovers of German Firms on the Rise, HANDELSBLATT TODAY (Sept. 3, 2014),
   https://global.handelsblatt.com/companies/chinese-takeovers-of-german-ﬁrms-on-
   the-rise-12623. See also New Chinese battery factory electriﬁes German e-car revolution,
   THE LOCAL GERMANY (July 9, 2018), https://www.thelocal.de/20180709/chinas-catl-to-
   build-electric-car-battery-plant-in-germany.
28
    Id.



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 automakers are planning a $300 billion surge in spending on electric
 vehicle technology over the next ﬁve to ten years, with nearly half of the
 money targeted at China, accelerating the industry’s transition from
 fossil fuels and shifting power to Asian battery and electric vehicle
 technology suppliers.”29


 FDI and BITs
 “While the early literature was skeptical on the effectiveness of BITs, more
 recent empirical studies generally ﬁnd that BITs do actually stimulate the
 inﬂow of FDI.”30

           We ﬁnd strong evidence that liberal admission rules promote

           bilateral FDI. We focus on two investment provisions which

           constitute    important      legal    innovations     relating      to   the

           liberalization and protection of FDI: (i) guarantees of market

           access for foreign investors by means of NT and MFN treatment

           in the pre-establishment phase; and (ii) credible commitments

           against discriminatory and discretionary treatment by means

           of ISDS mechanisms in the post-establishment phase.31

 With increasing FDI, more foreign companies will be establishing
 business in the foreign location which will employ workers who may be
 represented by labor unions, thus raising the question of the role of labor
 union cooperation with the foreign employer.32 Unions in Switzerland are
29
   This is an unprecedented level of spending – fueled by Germany’s Volkswagen AG. It is
   reported, “the future of Volkswagen will be decided in the Chinese market,” said Herbert
   Diess, chief executive of VW. Paul Lienert et al., Exclusive: VW, China spearhead $300 billion
   global drive to electrify cars, REUTERS (Jan. 10, 2019), https://www.reuters.com/article/us-
   autoshow-detroit-electric-exclusive/exclusive-vw-china-spearhead-300-billion-
   global-drive-to-electrify-cars-idUSKCN1P40G6?utm_source=applenews.
30
   Liesbeth Colen and Andrea Guariso, What Type of FDI Is Attracted by Bilateral Investment
   Treaties?, LICOS CENTRE FOR INSTITUTIONS AND ECONOMIC PERFORMANCE (June 12, 2012),
   https://www.etsg.org/ETSG2012/Programme/Papers/197.pdf.
31
   Axel Berger, Matthias Busse, Peter Nunnenkamp and Martin Roy, Do Trade and Investment
   Agreements Lead to More FDI? Accounting for Key Provisions Inside the Black Box, KIEL
   WORKING PAPERS IFW (2010), https://ideas.repec.org/p/zbw/wtowps/ersd201013.html.
32
   See Tian Ameng,FTA a win-win for China and Switzerland, CHINADAILY (Jan. 19, 2017),
   http://www.chinadaily.com.cn/business/2017wef/2017-01/19/content_27996541.htm.
   In 2017, China and Switzerland upgraded their 2013 FTA and data showed that: “in
   2015, Sino-Swiss bilateral trade reached $44.27 billion, of which China’s imports from
   Switzerland amounted to $41.1 billion. There are currently around 100 Chinese companies


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reported to have agreed in 2013 to the Switzerland-China FTA (which
incorporated        BIT     provisions),33       notwithstanding            concerns         over
protection of labor rights based on their conviction that: “ﬁrst, a policy of
economic opening towards China is better than one of isolating that
country, . . . secondly, the durability provisions that were negotiated . . .
provide better means of pressing both countries to combat human and
labor rights breaches than would have been the case without such an
FTA”.34



    2.2. PATHWAYS TO EU-CHINA BIT AND FTA

The pathway to an eventual successful bilateral FTA would be to build on
the existing EU–China 2020 Strategic Agenda for Cooperation that places
an EU-China BIT35 as central to the EU’s long-term bilateral relations
   in Switzerland. There’s also a growing interest from Chinese investor for Swiss brands in
   terms of M&A, targeting commodities but also sports, media and technologies, such as
   the deals between ChemChina and Syngenta, between Dalian Wanda and Infront Sports &
   Media”.
33
   See FTA, Switz.-China, Chapter 8, July 5, 2013 (includes all aspects of a BIT for
   investment).
34
   PEDRINA & DOKA, supra note 3. Switzerland-China FTA, Art. 3: 1. The Parties
   reaffirm the importance of cooperation to further improve their respective labour
   standards and practices in line with their national labour policy objectives and according
   to the obligations set out in applicable I.L.O. Conventions. 2. In pursuit of this
   objective, the Parties agree that cooperation relating to labour and employment, including
   administrative and technical cooperation as well as capacity building, shall be conducted
   under the bilateral M.O.U..
35
   See Axel Berger, Investment Treaties and the Search for Market Access in China,
   INTERNATIONAL INSTITUTE FOR SUSTAINABLE DEVELOPMENT (June 26,                        2013),
   https://www.iisd.org/itn/2013/06/26/investment-treaties-and-the-search-for-
   market-access-in-china/ (EU-China BIT has also been referred to as the Comprehensive
   Agreement on Investment (CAI) and the terms appear to have ﬂexibility as the
   latter may omit some terms present in a BIT). See also Iuliu Winkler, EU-China
   Investment Agreement - Legislative Train Schedule, EUROPEAN PARLIAMENT (May 20, 2019),
   http://www.europarl.europa.eu/legislative-train/theme-a-balanced-and-progressive-
   trade-policy-to-harness-globalisation/ﬁle-eu-china-investment-agreement.               For
   example, China also negotiates Preferential Trade Investment Agreements (hereinafter
   P.T.I.A.) of which four include comprehensive rules on investment:
              These treaties where negotiated with Pakistan (2006), New Zealand
              (2008), Peru (2009) and ASEAN (2009). The P.T.I.A. with Singapore
              just incorporates the China-ASEAN investment agreement and the
              P.T.I.A. with Costa Rica from 2010 just reaffirms the China-Costa Rica
              BIT signed in 2007. The P.T.I.A. recently signed with Iceland follows
              this approach and “recognizes the importance” (Art. 92) of the China-
              Iceland BIT from 1994.




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 with China.36 The BIT would accelerate the process toward an FTA and
 create a more open and transparent environment for increased ﬂows of
 investment. It would also improve investment for European and Chinese
 investors      by     creating      investment        rights       and       guaranteeing
 non-discrimination, improving transparency, and providing investment
 rules on environmental and labor-related aspects of foreign investment,
 as all are potential obstacles for agreement on an FTA.37
         In 2014, China, supported by the EU, joined the US-led and on-going
 negotiations under the WTO towards a global Trade in Services Agreement
 that also seeks to open markets and improve rules.38
         Furthermore, there is a Working Group from high levels of EU and
 Chinese governments, underscoring the seriousness of the work; the
 EU-China Trade Project II (hereinafter E.U.C.T.P.), works on the many
 substantive issues underlying an EU-China FTA and suggests appropriate
 positions and accommodations to support China’s continued integration
 into the global trading system.39
36
   See EU EXTERNAL ACTION, EU-CHINA 2020 STRATEGIC AGENDA FOR COOPERATION
   http://eeas.europa.eu/archives/docs/china/docs/eu-china_2020_strategic_agenda_
   en.pdf.
37
   Id.
38
   See Trade in Services Agreement, EUROPEAN COMMISSION, http://ec.europa.eu/trade/policy/
   in-focus/tisa/ (last updated July 14, 2017).            See also Shawn Donnan and
   Andrew Byrne, China Courts EU on Bilateral Trade Agreement, FINANCIAL TIMES
   https://www.ft.com/content/77dc2efc-b9b4-11e3-a3ef-00144feabdc0.
39
   See Project Background,       E.U.C.T.P.,  http://www.euctp.org/index.php/en/project-
   background.html.(“The E.U.C.T.P. works with Chinese and European ministries,
   directorates general and other organizations to develop and deliver results, as well
   as other international and donor organizations working in the ﬁeld of trade and
   sustainable development in China. China partners include: Ministry of Commerce,
   National Development and Reform Commission, State Administration of Industry and
   Commerce, Ministry of Justice, Ministry of Housing and Urban-rural Development,
   Ministry of Agriculture, General Administration of Quality Supervision, Inspection and
   Quarantine (AQSIQ), Legislative Affairs Office of the State Council, The People’s Bank of
   China, China Banking Regulatory Commission, China Securities Regulatory Commission,
   China Insurance Regulatory Commission, State Administration of Foreign Exchange,
   Certiﬁcation and Accreditation Administration of the People’s Republic of China, Beijing
   Municipal Commission of Commerce, Beijing WTO Affairs Center, China Science and
   Technology Exchange Center EU Partners: Directorate Generals for Trade, Directorate
   General for Health and Consumers, Directorate General for the Internal Market,
   Directorate General for Agriculture, Directorate General for Taxation and Customs
   Union, Directorate General for Information Society and Media, Directorate General
   for Mobility and Transport, Directorate General for Economic and Financial Affairs,
   Directorate General for Climate Action, Directorate General for Energy, Directorate
   General for Enterprise and Industry, Directorate General for Competition, and, EU



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 Further opportunities to move discussions on the EU-China BIT toward
 completion will arise in the second half of 2020 when the EU and China
 appear to be having a summit meeting.             40




         3. EU AND CHINA LABOR PROTECTIONS IN BITS AND FTAS

    3.1. BITS

 The EU Members have a number of BITs,41 most of which do not include
 labor provisions. However, three Member States have entered into four
 BITs that include labor provisions, including Belgium-Luxembourg42 and
 Austria,   43   that entered three separate BITs and commit to the I.L.O. core
 labor standards.         Currently, though there are China BITs with EU
   Delegation to China and Mongolia, EU China Project on the Protection of Intellectual
   Property Rights (IPR2), European Union Chamber of Commerce in China (EUCCC)”).
40
   See Andreas Rinke, Merkel planning EU-China summit for Germany’s 2020
   presidency, REUTERS (Jan.        14, 2019), https://uk.reuters.com/article/uk-eu-china-
   germany/merkel-planning-eu-china-summit-for-germanys-2020-presidency-
   sources-idUKKCN1P81FC. (“Chancellor Angela Merkel has proposed a China-European
   Union summit during Germany’s 2020 EU presidency that would include national leaders
   of EU countries as well as officials from Brussels and Beijing, EU diplomats said. The
   summit, which is likely to coincide with China’s displacement of the United States
   as the EU’s largest trade partner, would aim to counter what Berlin sees as Beijing’s
   divide-and-rule approach to dealing with the bloc. Projects like the Belt-and-Road
   debt-for-development initiative has made China an inﬂuential player in poorer eastern
   EU members like Hungary and Greece”).
41
   See How to Understand the China-EU Bilateral Investment Treaty Negotiation, INSTITUTE
   OF EUROPEAN STUDIES OF CHINESE ACADEMY OF SOCIAL SCIENCES, (May 13, 2019),
   http://ies.cass.cn/english/chinare/cer/201309/t20130903_2464193.shtml. It has been
   noted that the BITs of EU members “are still incomplete as there is a lack of completeness
   and coordination from the overall perspective of the EU. Moreover, the BITs concluded
   by China with different EU Member States, although quite similar, may result in large
   differences in speciﬁc content such as standards of treatment, currency exchange
   and different provisions with regard to dispute settlement.” See also Jie Hao and
   Dawe Li, Progress, Difficulties and Promotion Strategies of the EU-China BIT Negotiation,
   http://english.cciee.org.cn/archiver/ccieeen/UpFile/Files/Default/2017121.pdf.          See
   also International Investment Agreements Navigator, UN INVESTMENT POLICY HUB,
   http://investmentpolicyhub.unctad.org/IIA/mappedContent.                    (“International
   investment agreements (IIAs) are divided into two types: (1) bilateral investment
   treaties and (2) treaties with investment provisions”).
42
   See Agreement for Reciprocal Promotion and Protection of Investment, BLEU -
   Montenegro, art. 1(6), Apr. 22, 2016.
43
   See Agreement for the Promotion and Protection of Investment, Austria - Taj., art. 5, Dec.
   15, 2010.



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 members, none include labor provisions. As EU and China trade continues
 to grow, it is also expected that FDI will increase in both countries. This
 will result in more interaction with workers and foreign labor unions and
 increases the need for attention to labor issues and labor union
 cooperation.44       Meanwhile, the negotiations for an EU-China BIT
 continue.45 “It will replace the 26 existing Bilateral Investment Treaties
 between 27 individual EU Member States and China by one single
 comprehensive investment Agreement.”46
         The EU Government stated: “The EU’s top priorities remain the
 conclusion of the Comprehensive EU-China Agreement on Investment
 [BIT].”47 Further, German Chancellor Merkel said she “wanted quick
 progress on an EU-China investment deal and that this would be a
 precondition to any free trade talks, a move Premier Li said would be
 timely.”48
44
   See John Seaman, Mikko Huotari, Miguel Otero-Iglesias, (eds.),, Chinese Investment in
   Europe: A Country-Level Approach, EUROPEAN THINK-TANK NETWORK ON CHINA, p. 154-155
   (Dec. 2017), https://www.merics.org/sites/default/ﬁles/2018-01/171216_ETNC%20Repo
   rt%202017_0.pdf.
45
   See Overview of FTA and Other Trade Negotiations, EUROPEAN COMMISSION
   http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf (The 18th
   round of negotiations took place in Brussels from 12 to 13 July 2018). For a more
   comprehensive analysis, see Ronald C. Brown, China-EU BIT and FTA: Building a Bridge
   on the Silk Road Not Detoured by Labor Standard Provisions, UNIV. WASH. INT’L L. J.
   (forthcoming 2019-20).
46
   Id. (“In 2016 the EU and China negotiators reached clear conclusions on an ambitious
   and comprehensive scope for the EU-China investment agreement and established a joint
   negotiating text”).
47
   EUR. PARL. DOC. (PE 570.493) 12 (2018), supra note 12, at 6.
             Negotiations, launched in 2013, on the EU’s ﬁrst bilateral
             Comprehensive Agreement on Investment are the EU’s immediate
             top priority with a view to deepening and rebalancing relations with
             China. The aim is to reach the same level of openness in China’s
             market that is already available in the EU’s market. The objective
             is to facilitate market access by addressing both discriminatory and
             quantitative restrictions. Both investment and investor protection
             and reciprocal market access are important aspects for the EU. The
             EU Member States’ Bilateral Investment Treaties (BITs) with China
             do not provide for investment market access. So far, 17 rounds of
             negotiations have taken place, the most recent one from 22 to 24 May
             2018.
48
   Germany and China Vow to Expand Partnership Amid Concerns About Trump’s Policies, BLACK
   CHRISTIAN NEWS NETWORK ONE, https://bcnn1wp.wordpress.com/2017/06/01/germany-
   and-china-vow-to-expand-partnership-amid-concerns-about-trumps-policies/ (Jun.
   1, 2017).




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 It is perhaps noteworthy that the EU-China 2020 Strategic Agenda for
 Cooperation placed as a goal in its EU-China BIT negotiations – to
 negotiate “rules on environmental and labor-related aspects of foreign
 investment” (emphasis added).49
         Although current China BITs, included those concluded with EU
 Member States do not contain labor protections or references to I.L.O.
 standards,50 it is not uncommon for a BIT to precede an FTA and is often
 incorporated into the FTA. It was recently51 noted that as “a precursor to
 their free trade agreement (FTA) negotiations, which launched in March
 2013, China, Japan, and Korea (CJK) signed a trilateral investment
 agreement in May 2012.”52             And, as noted above, it is reported to be
 included in the currently negotiated EU-China BIT.



     3.2. FTAS

 EU FTAs all contain labor protection provisions committing to I.L.O. core
 labor standards and have a dispute resolution system with a tripartite
 format, though without penalties for violations (e.g., Japan, Canada, S.
 Korea). First, there are substantive standards committing to I.L.O. core
49
   Trade,      EUROPEAN     COMMISSION       http://ec.europa.eu/trade/policy/countries-and-
   regions/countries/china/ (last updated May 7, 2019). See also FRANK BICKENBACH ET
   AL., KIEL INSTITUTE FOR THE WORLD ECONOMY, THE EU-CHINA BILATERAL INVESTMENT
   AGREEMENT IN NEGOTIATION: MOTIVATION, CONFLICTS AND PERSPECTIVE 95 (2015).
50
   See EUROPEAN COMMISSION, supra note 45. There are 26 existing Bilateral Investment
   Treaties between 27 individual EU Member States and China. See also Investment Policy
   Hub, http://investmentpolicyhub.unctad.org/IIA.
51
   See Jeffrey J. Schott and Cathleen Cimino, The China-Japan-Korea Trilateral Investment
   Agreement: Implications for US Policy and the US-China Bilateral Investment Treaty, PIIE
   BRIEFING (Feb., 2015), https://www.goldmansachs.com/our-thinking/pages/us-china-
   bilateral-investment-dialogue/multimedia/papers/toward-a-us-china-investment-
   treaty.pdf.
52
   Agreement among the Government of Japan, the Government of the Republic of
   Korea, and the Government of the People’s Republic of China for the Promotion,
   Facilitation and Protection of Investment, May 13, 2012. For discussion of difficulties
   of negotiating a trilateral FTA, see Jonathan D. Greenberg, The Elusive China-Japan-
   South Korea Free Trade Agreement (Sept., 2015) (thesis, NPS Monterey, California),
   http://www.dtic.mil/dtic/tr/fulltext/u2/1008948.pdf (the author suggests there are “four
   potential explanations for the trilateral FTA’s current lack of progress: perceptions of the
   deal not being an economic priority, the power of inﬂuential domestic business interests
   negatively affected by the FTA, regional competition over China’s growing domestic
   market, and regional political-historical animosities”).




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 labor standards and the Decent Work Agenda;                          second, there are
 obligations and procedural commitments relating to implementation;
 third, there are institutional mechanisms to resolve disputes.                  53


         Of China’s thirteen FTAs, ﬁve include labor protection standards
 (Chile, Iceland, New Zealand, Peru, and Switzerland). Of the ﬁve FTAs
 that have references to labor issues, substantive provisions are not in the
 texts of FTAs but are in M.O.Us.             There is diversity ranging from the
 China-Iceland FTA54 where the parties agree to enhanced labor
 communication and cooperation, to other agreements, such as with New
 Zealand and Switzerland55 where, as in EU FTAs, the parties reaffirm their
 obligations under the I.L.O. and recognize that it is inappropriate to
 encourage trade or investment by weakening or failing to enforce labor
 laws, and that it is inappropriate to set or use labor laws, regulations,
 policies and practices for trade protectionist purposes, but there is no
 enforcement mechanism.56
         The text of the 2013 Switzerland-China FTA itself has very minimal
 language regarding labor standards.                  Chapter 13.5, Economic and
 Technical Cooperation, refers to the 2011 and the 2013 China-Swiss
 M.O.U..57 This M.O.U. has language that largely parallels the language of
 the EU’s FTA labor provisions.             Likewise, China’s FTAs with non-EU
53
   See James Harrison et al., Governing Labor Standards through Free Trade Agreements: Limits
   of the European Union’s Trade and Sustainable Development, 57 J. COMMON MKT. STUD. 260
   (2018).
54
    See FTA, China-Iceland, art. 96, Apr. 15, 2013.
55
   See, e.g., FTA, Switz.-China, July, 2013.
56
   See FTA, N.Z.-China, Apr. 7, 2008.
57
   See Agreement on Labor and Employment Cooperation, Switz.-China, 2013. See also
   the 2013 M.O.U. also referenced an earlier more generally-worded 2011 Memo of
   Understanding.
               Considering the objectives and principles of the International Labor
               Organization (hereinafter I.L.O.) of which Switzerland and the
               People’s Republic of China are members; including their commitment
               under the 1998 Declaration on Fundamental Principles and Rights
               at Work and its follow-up, as well as the 2008 I.L.O. Declaration on
               Social Justice for a Fair Globalization, Determined to improve working
               conditions and living standards in their respective countries and
               protect, enhance and enforce basic workers’ rights as embodied in the
               core labor standards, have reached the following understanding.
   See also Agreement on Labor and Employment Cooperation, Switz.-China, 2011.




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 members, Chile and New Zealand have similar language in their labor
 provisions committing to I.L.O. core labor standards.58
           In sum, comparing past BITs of China and the EU, respectively,
 neither includes labor provisions. However, three EU Members – Austria
 and Belgium-Luxembourg (in tandem) have concluded BITs containing
 labor provisions that are quite like those in the recent EU’s FTAs. China’s
 FTA-related M.O.U.s regarding labor standards and dispute resolution are
 like those of the EU.




           4. LABOR COOPERATION

 Labor cooperation, with or without an FTA, occurs in different forms,
 formal and informal, with the former sometimes hosted by the
 governments and include conducting training and workshops, frequently
 in cooperation with other organizations, such as the I.L.O., O.E.C.D.,
 International Trade Union Confederation (hereinafter I.T.U.C.). Informal
 education of labor rights and issues is often undertaken by labor unions
 themselves.
           For example, in Switzerland, that has an FTA with China, the
 unions are working to create labor education and cooperation between
 Swiss and Chinese labor unions and workers.59 Although it remains to be
 seen whether this FTA can really become a lever in the struggle for human
 and labor rights in China, their strategic plan is described below.
             The Swiss multisectoral trade union, Unia, together with the
             development organization, Solidar Suisse, has chosen an
             interesting approach, with the dual aim of both contributing to
             the application of labor rights in China and promoting the
             notion of solidarity among their own members and the general
             public.    The main element is the provision of support to
58
     See FTA, China-Chile, Nov. 18, 2005. See also FTA, N.Z.-China,Apr. 7, 2008.
59
     See, e.g., PEDRINA & DOKA, supra note 3.


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             rank-and-ﬁle groups in China that have set out to assist
             workers in their struggle to get their rights applied. Chinese
             labor law does provide scope for this, but the big problem is
             implementation. As part of this program, support is given to
             grassroots organizations which advise and mentor workers
             regarding problems with overtime, social insurance and
             occupational health.

             A second objective, in both countries, is to establish a link

             between employee representatives within Swiss ﬁrms active in

             China (whether subsidiaries or joint ventures). The aim here is

             to   get   labor   rights   respected    by     promoting        collective

             agreements. In China, the conditions for this have been slightly

             improved recently by the creation of a new legal basis for

             collective bargaining policy.      In several provinces, it is now

             quite possible to conclude collective agreements. This raises

             the question of the form to be given to relations with the

             official trade unions affiliated to the A.C.F.T.U. federation.

             These are the only organizations with a recognized entitlement

             to represent employees.60

 German labor cooperation provides another illustration.                              Inside the
 workplace itself, the goals of labor education, reform, and cooperation
 may be taking place, where as a result of FDI, foreign employers must deal
 with the local laws and labor unions in working out understandings and
 accommodations. For example, the Chinese company Midea, that recently
 purchased German robotic company Kuka in Germany, continues to have
 the IG Metall Worker’s Union inﬂuencing employer labor decisions. In
 November 2017, the employer announced that 250 of the unit’s 5000
 employees would be cut, and immediately, the union head of the
60
     Id. (“The third element is awareness-raising in Switzerland. ”My colleague Li“ is the
     slogan that Unia and Solidar Suisse have chosen for regional events, a ﬁlm, workplace
     leaﬂeting etc. The aim is to inform union members about the realities of labor struggles
     in China today and our solidarity action, thus encouraging them to play an active part. By
     denouncing abuses, the intention is also to put pressure on the Swiss authorities and on
     China to start changing things. The durability provisions in the new FTA are to be used as
     a lever for this”).



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 Augsburg branch of IG Metall, Germany’s largest labor union said, “talks
 with management are underway to ‘get to the bottom of it”.61                               The
 engagement of labor unions and employers in collective bargaining is an
 attribute of labor cooperation and is at the core of labor cooperation to
 beneﬁt the workers.
         The strategies of German unions towards China began with
 research, training, and visits along with some grassroots assistance; and,
 they also participate in joint programs with I.T.U.C. and other sector
 international unions.62 As early as 2009 there was cooperation between
 China’s A.C.F.T.U. and Germany’s IG Metall Trade Union and it has proven
 to be by far the most active foreign union in China with the longest
 experience in cooperation.

          German unions have adopted a variety of strategies for dealing

          and cooperating with the ACFTU and on a much smaller scale

          also with Chinese workers. This however can be explained quite

          easily, given that roughly 75% of German enterprises investing

          in China fall within the scope of the IG Metall.63

 The IG Metall Trade Union determined that coping with the ongoing
 globalization, had to be by transnational trade union cooperation and
 strived for adjustment of labor standards worldwide as an instrument to
 both preserve German jobs and ﬁght for social justice in developing
 economies.64 For speciﬁc strategies, it targeted companies, not workers,
61
   Daniel Ron, German robot maker Kuka eyes e1b sales in China by tapping
   parent’s Midea Group’s network, SOUTH CHINA MORNING POST (Mar.                 7, 2018),
   https://www.scmp.com/business/companies/article/2136197/german-robot-
   maker-kuka-eyes-eu1b-sales-china-tapping-parents.           See also, Barbara Woolsey,
   Robot maker Kuka feels the squeeze, HANDELSBLATT TODAY (Dec.                  17, 2017),
   https://global.handelsblatt.com/companies/robot-maker-kuka-feels-the-squeeze-
   861702 (Under the investor agreement spanning to 2023, Midea said it would not
   interfere in management or close any plants and would support Kuka’s growth strategies.
   The agreement also said it would not delist Kuka from the German stock exchange
   or access Kuka’s intellectual property and client data). See also KASTNER, supra note
   4. See also, Kuka Sustainability Report 2017, https://www.kuka.com/-/media/kuka-
   corporate/documents/ir/reports-and-presentations/sustainability-reports/kuka-
   sustainability-report-2017.pdf.
62
   See SANDER, supra note 6.
63
    Id.
64
   See Id. (“One of the earliest attempts of enterprise-level international engagement and
   cooperation was made by parts of the IG Metall in the auto industry. As a forum for union


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 codes of conduct,           and international framework agreements65 and
 established “trade union cooperation in MNCs and Joint Ventures through
 their international partners (notably the IMF).”66

           [T]he most active and successful engagement has not been

           targeted at those Chinese workers most affected by appalling

           working conditions (e.g. unskilled migrant laborers working in

           the informal sector or the Export processing enterprises of

           most notably the textile and toy industry) but rather at big

           companies (Bayer, Siemens, VW or Daimler Chrysler to name

           only a few) employing skilled Chinese labor. This is however

           not surprising, as the main focus of national unions in the

           international arena has always been on labor issues in

           subsidiary companies of these big companies’ German

           unions.67

 At the same time, the goals of labor education, reform, and cooperation
 are taking place at the workplace level, where as a result of FDI, foreign
 employers must deal with the local laws and labor unions in working out
 understandings and accommodations.
         Sweden, an EU Member without a bilateral FTA with China, has
 ongoing labor workshops with China dealing with labor themes and
 Corporate Social Responsibility, including for example, training on
 “social responsibility and international trade, labor contract, working
   workplace representatives and shop stewards they sought to establish communication
   and exchange of information between workforces of plants worldwide. Solidarity action is
   organized if necessary, as well as qualiﬁcation and training of unionists for international
   trade union work”).
65
   See Id.(“Daimler Chrysler has established a Code of Conduct in their Chinese production
   plants, Faber Castell has implemented a Social Charta which is monitored by IG Metall
   and IMF. IG Metall‘s especially tried to establish trade union structures particularly in
   German-Chinese Joint Ventures. Additionally, strived to implement social minimum
   standards through Codes of Conduct – as for instance for Daimler Chrysler. International
   Framework Agreements have so far been the most effective means of engagement in
   China”).
66
   Id.
67
   Id. (“An early IMF and Asia Monitor Resource Centre report in China-based plants of
   German MNCs found that workers were largely unaware of such agreements and that there
   were not shown to be effective. The same report also revealed that the impact of trade
   unions is bigger in joint ventures where some board members are German and thus closer
   consultation with German unions takes place (e.g. Beijing Daimler Chrysler)”).


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 hour, wage and beneﬁt, harmonious working relationship, international
 standard of working hour and wage, factory inspection as well as
 requirements and management for young workers.”68                            Swedish labor
 union cooperation with the Chinese labor union is also ongoing.

           “The Swedish model is unique because it is an agreement

           between trade unions, the employers’ organizations and the

           government,” said Mr. Anders Ferbe, Chairman of the Swedish

           trade union IF Metall at a seminar about democratic

           management in business in Beijing [in 2015]. The event offered

           a unique and ﬁrst-time opportunity for Swedish companies to

           meet representatives from the ACTFUs.69

 Likewise, China participates in ongoing labor workshops; for example, a
 recent seminar co-hosted by the A.C.F.T.U. and Trade Union Advisory
 Committee to the O.E.C.D. (hereinafter O.E.C.D.-T.U.A.C.) has dealt
 speciﬁcally      with     the    sustainable      development           of    multinational
 corporations and the role of trade union. The seminar dealt with “China’s
 initiatives to build a Silk Road Economic Belt and 21st Century Maritime
 Silk Road,      [and how] to regulate the behavior of multinational
 corporations,       safeguard workers’ rights and promote sustainable
 growth”.70
         There is also an international organization, the Trade Union
 Development Cooperation Network (hereinafter T.U.D.C.N.) whose
68
   Joint    Activities,   SINO-SWEDISH      CORPORATE    SOCIAL    RESPONSIBILITY     WEBSITE,
   http://csr2.mofcom.gov.cn/article/wangzhanjianjie/about2.shtml#jinzhan28.           (A list
   of the many joint activities is provided).
69
   See The Swedish model:              a win-win-win solution to industrial relations,
   SINO-SWEDISH CORPORATE SOCIAL RESPONSIBILITY WEBSITE (Apr.                      22, 2015),
   http://csr2.mofcom.gov.cn/article/csrnews/news2015/201505/20150500959653.shtml.
              For example, Swedish fashion brand H&M is helping its suppliers
              in China to build a good industrial relation in the factories with the
              support of IF Metall. We are working from different angles, including
              internal communication, cooperation with other brands, engagement
              of local governments and capacity building for the suppliers. . . . Mr.
              Zhang Zhijun, Director of Supervision Division of Legal Department
              of A.C.F.T.U. suggested, “It is very important for companies to build
              up an internal communication mechanism between the workers and
              management”.
70
   A.C.F.T.U./O.E.C.D.-T.U.A.C. Seminar, ALL-CHINA FEDERATION OF TRADE UNIONS (May 28,
   2015), http://en.acftu.org/28612/201505/28/150528142253162.shtml.


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 objective is to bring the trade union perspective to the international
 development           policy    debates      and     improve       the     coordination          and
 effectiveness         of   trade     union     development          cooperation         activities.
 T.U.D.C.N. is an initiative of the I.T.U.C. bringing together affiliated trade
 union organizations, solidarity support organizations, regional ITUC
 organizations, the Global Union Federations (GUFs), the European Trade
 Union Confederation (ETUC) and the O.E.C.D.-T.U.A.C..71




            5. CONCLUSION

 An EU-China BIT and FTA with stabilizing “rules of the road” provisions
 and labor provisions will increase FDI and provide more inter-union and
 union-foreign employer interaction and cooperation and impetus for
 increased worker protection. The EU-China corridor of the new Silk Road
 could and should be paved with standards consistent with international
 labor standards and emanating from an EU-China BIT and FTA and with
 its accompanying labor cooperation that exists within and behind the
 legal terms. This provides an additional approach to enforcement and
 improvement of workers’ conditions whether it occurs accompanying the
 formal levels of treaties, by the I.L.O., or by the informal changes “on the
 ground”, coming from the diverse avenues of labor cooperation.




71
     See generally Trade unions as actors of development education and awareness raising for global
     solidarity, TRADE UNION DEVELOPMENT COOPERATION NETWORK (2016), https://www.ituc-
     csi.org/IMG/pdf/tudcn_brochure_dear_2016_en.pdf.


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