New Rules Of International Trade And Investment And Inspiration From Shanghai Free Trade Test

Theoretically speaking, some critical characteristics are illustrated by the international trade and the development of its rules:the international trade has turned from cargo movement to production factors movement, both the rules and laws of the international trade have public-private nature,and liberalism and protectionism have led to two kinds of trends of the international trade. Historically speaking, the rules of international trade has experienced from the primitive commercial practice and customary practice in ancient times to the Law Merchant in European business community,then it began to be involved in to the domestic law of countries and finally it became international and unified. With the development of contemporary international trade rules and the rise of investment rules,in form,the development of multilateral trade system keeps pace regional trade system while the regional economic organizations share overlapping influences on each other’s development; and in context, the accelerating flow of international capital has forced the emergence of international investment rules, and the new round of of negotiation and establishment process of international trade rules at the start of this century.The new round of the negotiation of international trade and investment rules starts under such background which the multilateral trade system is running into trouble,WTO is shifting away from the agreement of regional trade and investment,the developed countries continue to playing leading role in the new round of economic and trade agreement,etc. Based on the analysis of the new rules in investment, the investment treaty of TPP agreement and the version of 2012 of American BIT are the most representative. The former belongs to investment sector of the regional economic and trade agreement which reflects the requirement of economic integration in a more comprehensive view;the latter pertains to bilateral investment agreement which satisfies the interest demand of both sides in a more direct way. Through the sort of the investment treaty of TPP agreement and the core context of the version of 2012 of American BIT, six trends are presented by the development of new rules in investment:the definition of investment and investment activity has a broader rang of application, a comprehensive national treatment policy and management system of the non-conforming measures list should be adopted in foreign capital,various measures should be implemented to boost the liberalization of international investment, the practice of investment law and rule and policy should be more transparent, the relation between investment issues and the protection of environment and laborers should be more closer,and the settlement mechanism entity and procedural rules of investment disputes should be more concretizing.The change which had been taken in principle of the idea and value orientation of the new rules of international investment could be concluded from the surface change of the rule context. There is a more and more obvious integration trend of the obscure limitation of the rules in different areas. The new rules ask for building a comprehensive national treatment principle system and have a more distinct binding force of national sovereignty, while the idea of human right protection having been taken hold in the new rules of investment.On account of the above understanding, a few recommendations are given to the system design of the improvement of the openness for investment in China(Shanghai) Free Trade Area:firstly, the reform of investment and openness system in FTA should be connected with the new rules in investment; secondly,the legislation in FTA should directly embody the prevailing rules of international trade investment;thirdly,the legislation of permission for foreign investment should be back to national level;fourthly,the improvement of transparency should be kept as a grasp to explore how to establish regulatory system during and after the foreign capital investment;fifthly,the transformation of government functions to build a real management mode of “negative list” should be accelerated; lastly, the arbitration system of investment dispute settlement in FTA should be optimized.