The Improvement Of Chinese Legislature For Foreign Capital On The Background Of Weakening The Jurisdiction Of Overseas Investment

In recent years,accompanied with economic globalization,the trend of international investment liberalization is stronger and stronger.In order to give impulse to international investment,the international investment law has made some new changes,which are characterized by improved investment treatment,reinforced investment protection,enlarged areas of market admittance and internationalization of investment disputes.But globalization and investment liberalization has brought a new problem that it requires weakening the jurisdiction of overseas investment which shows in market admittance and the control of foreign capital.According to the traditional rules of international law,the host country has the right to set rules depend on its own economic plan.The market admittance is belonging to internal law.In 1980s,the bilateral and multilateral treaties are unconcerned with the liberalization of market admittance.However,accompanied with strengthening the liberalization of international investment,the right of controlling about foreign capital has gradually effected by bilateral and multilateral treaties.Some treaties have reflected this requirement of admission liberalization.And the national treatment in pre-establishment has become the common clause in most of the treaties that developed countries conclude.But most of developing countries hesitate to this.Because national treatment in pre-establishment will be not only weaken the jurisdiction of overseas investment but also challenge the economic sovereignty of a country.Since the initiation of the open-door and reform policy,China has been carrying out various incentives to attract FDI enthusiastically with less-strict admission policy.The trend of China's legislation concerned indicates that China is actively devoted to investment liberalization under WTO investment frame.As the largest developing country,China also takes this rare opportunity to develop the economy,but its economic sovereignty will definitely face the big challenges.Considering long-term economic development,however, irreparable negative effect should be caused in terms of China's future economy if Government inflexibly performs obligations required by WTO investment frame,lessens the limit regarding investment admission and operation,and carries on incentives.China's economic system and marketing frame is yet to be perfect,many systematic and economic defects will exist in the domestic industries for a long time to come with the background that China is on the period of economic system shifting.How to make advantage of FDI instead of being made advantage of by FDI,how to resort to WTO system to evade investment obligations concerned for the sake of China's great interest,which are the questions one law learner should think over.This thesis states particularly and fully the trend of the new development of international investment -weakening the overseas investment jurisdiction of the host countries from the aspect of international investment law,and summarizes the effects being had by weakening the overseas investment jurisdiction on China and takes this as the direction of the improvement of our overseas investment legislation,analyses generally and objectively those problems of the current overseas investment legislation,explains scientifically the elements that result in the problems,and finally comes to the proposition of improving Chinese overseas investment legislation and formulating a unified,scientific,and advanced overseas investment legal system that coincide with international developing trend.The organization of this thesis is as following:In part one,the trend of international investment is summed up concisely on the background of the changes about bilateral and multilateral investment regulations.In part two,starts with the concept of jurisdiction of overseas investment,and further analyses the forms and ways which the jurisdiction of overseas investment shows.In part three,from the point of capital importing country and capital exporting country, sum up the impact of weakening the jurisdiction of overseas investment on China.Then, further analyses the views on how to reply the trend of weakening the jurisdiction of overseas investment.In part four,analyses the status of Chinese legislature for foreign capital and demonstrates the trend of lessening FDI admission institution.The following is that defects in the Chinese overseas investment legislature are analyzed.In part five,guided by the principle of "interest of the host-state is a priority" several preliminary construction and proposals in detail are suggested.The improvement of Chinese legislature for foreign capital is a systematic work including both elimination and creation,both brave reformation planned enforcement.It should take into consideration not only and carefully and long-term interests of China,but also the trend of the new development of international investment law and the current situation of China.Thus,taking effective measures in the light of its own actual conditions is the only way for China to keep the lasting,healthy and rapid development of economy on one hand,and protect the economic sovereign on the other.