| Overseas investment insurance started in the United States and then took root in developed countries such as Germany and Japan.Especially when in the 1990s,the process of global economic integration accelerated,and the liquidity of overseas direct investment grew rapidly.Along with the investment opportunities of emerging countries and developing countries,there were also complicated political risks.The coexistence of opportunities and challenges has promoted the rapid development of overseas investment insurance business.On the one hand,China encourages its domestic enterprises to 'go abroad' through policies,and on other hand,it provides 'safety guarantees' for them,that is,to follow the example of developed countries and establish a Chinese export credit insurance company to undertake overseas investment insurance.However,China's overseas investment started late and has little experience,resulting in the development of overseas investment insurance system in China is slightly weaker than developed countries.The theoretical basis and legal basis of the overseas investment insurance system deserves in-depth study,and the barriers encountered by the overseas investment insurance system growing on the soil of China are of more research value.Through the accumulation of experience and statistics in the practice of 'China Export&Credit Insurance Corporation',the'problem' of the overseas investment insurance system has been identified.To solve these problems,this thesis conducts research on restructuring Chinese overseas investment insurance legislation and repairing overseas investment insurance contracts,aiming to promote the overseas investment insurance system to protect Chinese overseas investment.The full text is divided into eight chapters,from the study of the origin of overseas investment insurance legal system and the latest legislative trend,the legislative system and legal sources of the overseas investment insurance system,expounding the theoretical cornerstones of the overseas investment insurance system,and then expand to overseas investment insurance system legislation pattern,the overseas investment insurance contract as well as the problems existing in the subrogation of discuss them one by one.At last,the paper makes an empirical study of China's overseas investment insurance system by using the economic method,finding the shackles of China's overseas investment insurance system,and finally puts forward China's countermeasures from the perspective of reconstructing legislation and insurance contract termsThe first chapter discusses the origin of the legal system of overseas investment insurance and the latest legislative trend,and defines the legal system and related concepts of overseas investment insurance.Although overseas investment insurance originated in the United States in the last century,it has the latest development and changes.In 2018,the United States passed Better Utilization of Investment Leading Development Act to create U.S International Development Finance Corporation,replacing the U.S.Overseas Private Investment Corporation,which had been operating for nearly 50 years.This latest shift in U.S.foreign development policy from 'aid' to 'development' highlights the requirements for host countries and investors when insuring overseas investments by DFCChapter two discusses the relationship between diplomatic protection theory and global governance theory and overseas investment insurance respectively.First of all,it explains the relevance between the theory of diplomatic protection and overseas investment insurance Diplomatic protection refers to the diplomatic action or other means of peaceful settlement taken in the name of a state for its nationals who are harmed by the internationally wrongful act of another state.Combined with overseas investment insurance,the first is to demonstrate that overseas investment insurance companies are state-owned enterprises,which underwrite policy-based risks and belong to 'in the name of the state'.Second,regarding‘other peaceful means',means based on 'non-force' can be considered as peaceful means,and overseas investment insurance can be considered as peaceful means.Secondly,MIGA is used as the carrier to reveal the correlation between global governance theory and overseas investment insurance.It focuses on the following three aspects:MIGA is in line with the characteristics of participation of diversified subjects under global governance,MIGA is a way to solve the friction among diversified subjects,and MIGA has established a stable mechanism of rights distribution.The third chapter focuses on the analysis of overseas investment insurance legal system of the investment home country legislation model.At present,three legislative modes have been generally formed:hybrid legislative mode,combined legislative mode and separate legislative mode.Combined with the overseas practice of the legislation mode of the investment home country of the overseas investment insurance legal system,few countries have adopted the separate legislation mode,that is,countries that have issued a special'overseas investment insurance law' have not yet appeared.It is also rare for countries to adopt the hybrid legislation mode,and the hybrid legislation mode has the defect of'fragmentation' of legislation.The vast majority of countries choose the model of merger legislation.In the model of merger legislation,the United States and other countries combine foreign aid or development policies with overseas investment insurance laws,and Japan and other countries combine export credit insurance with overseas investment insurance laws,which are the most representative.In contrast,the latter is more able to focus on the legislative purpose of overseas investment insurance system and meet the goal of pursuing a balanced and unified legislative cost and efficiency.Chapter four clarifies the question whether the overseas investment insurance contract is the credit insurance contract or the property insurance contract.It challenges the view of domestic scholars that overseas investment insurance contracts are classified into credit insurance contracts.Whereas the original purpose of credit insurance is to insure the debtor's credit risk from the insured.When the debtor is unable to perform the debt due,the insurer shall indemnify the insured.Corresponding to the overseas investment insurance contract,if a concession agreement is signed between the foreign investor and the host country,then the debtor is the host country and the creditor is the insured.In other words,only when the insured is a subsidiary,overseas investment insurance is likely to be credit insurance under certain conditions.If the parent company is the insured,then the nature of the overseas investment insurance contract still belongs to the property insurance contract,and the subsidiary is the property carrier of the parent company.The fifth chapter expounds the bottleneck and breakthrough of the subrogation right exercise by the treaty.Us-style bilateral investment treaties provide little or no subrogation,but instead enter into separate agreements with companies that insure overseas investments.This approach is risky.Neither OPIC nor DFC has the unequal status with the host country,so it is difficult to sign the agreement of win-win cooperation.Even if such an agreement is signed,its status cannot be compared with that of a treaty,nor can the liability of the host country for breach of contract be elevated to that of a State under international law.There are also difficulties in exercising the right of subrogation under Convention Establishing the Multilateral Investment Guarantee Agency.This is due to the diversity of states parties to multilateral treaties,which increases the difficulty of the details,and the waiver by States of immunity from jurisdiction in foreign courts does not imply a waiver of immunity from execution.When an insurance company in the investor's home country exercises the right of subrogation,if it exercises the right of subrogation through ICSID in its own name,it may encounter the problem of ineligibility of subj ect.Chapter six is an empirical study of Chinese enterprises' overseas investment insurance in countries along 'The Belt and Road'.With the help of qualitative and quantitative analysis of economics,this chapter reveals the severe situation of political risks faced by China's investment along 'The Belt and Road',especially the risk of expropriation and war.But even so,the overseas investment insurance system has not received enough attention from investors.Chapter seven explores the problems existing in the legal system of China's overseas investment insurance.First of all,the legislation of China's overseas investment insurance system includes two aspects:domestic legislation and international legislation.The former is about the legislative model of China's overseas investment insurance,while the latter is about the BIT signed by China.China belongs to the mixed legislation model.That is to say,China's overseas investment insurance legislation is scattered in different legal documents and lacks of specialized norms such as separate legislation model.Therefore,in practice,we have to rely on the rights and obligations of the parties to the overseas investment policy of China Export&Credit Insurance Corporation'.The problem with international legislation is‘old'.Although China has signed a large number of BITs,most of these bits,especially those with developing countries,were signed before 2000.In these BITs,the national treatment before and during the period of explicit access leads to the risk of indirect expropriation,and the defects of sufficient protection and security clauses in the minimum treatment also make it difficult for investors to get adequate protection against the risk of terrorism.Secondly,there are defects in the terms of 'China Export&Credit Insurance Corporation' overseas investment policy.In practice,due to the imperfect legislation,the overseas investment policy clauses of 'China Export&Credit Insurance Corporation' have become one of the important bases to solve quasi-judicial and judicial problems.However,the‘compliance'of its provisions is open to question.First,it is difficult to identify indirect expropriation in terms of liability,and there is no independent terrorist insurance.Second,'China Export&Credit Insurance Corporation'exemption from liability.It is difficult to determine the causal relationship between the illegal act and the risk in the clauses of the insured's obligation.Third,the recovery clause cannot restrain the host country subsidiary.The fourth is the distance between the compensation clause and the 'Hull Principle'.The eighth chapter puts forward corresponding countermeasures for the problems in the seventh chapter.One is to start with the domestic legislation and replace the mixed legislation model with the combined legislation model.Considering that the time for the enactment of the Overseas Investment Insurance Law is not yet ripe,it is proposed to establish a special chapter to regulate the overseas investment insurance through the enactment of an Overseas Investment Protection Law.Secondly,through the empirical analysis of overseas investment insurance disputes,the article of overseas investment insurance contract of 'China Export&Credit Insurance Corporation',another basis for solving domestic disputes,is improved.The third is to renegotiate or supplement the out-of-date BIT in view of the obstacles in exercising the right of subrogation. |
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