A Study On The Legal Problems Of Foreign Investment Market Access

In the field of international investment, foreign investment can generally be divided into three parts, foreign investment market access, foreign investment operational period and exit of foreign investment. Foreign investment market access is the primary stage for foreign investors to enter the host country and is consisted of four aspects. They are capital composition of foreign investment, scope of foreign investment, performance requirements of foreign investment and approval system of foreign investment. Foreign investment market access is the focus of foreign investment legislation of all countries.For a long time, China holds a relatively conservative attitude towards the legislation of foreign investment market access. There are many restrictions on foreign investment market access, which hinder the further development of China’s economy. Founded in September 2013, China (Shanghai) Pilot Free Trade Zone began to apply pre-establishment national treatment and negative list foreign investment market access management mode, setting out special administrative measures where national treatment is not granted. For areas falling outside the Negative List, filling/reporting system will be applied as the same as domestic investment. In this thesis, the author discusses relevant legal issues of foreign investment market access from the perspective of Negative List of Shanghai Pilot Free Trade Zone, so as to put forward suggestions to improve foreign investment market access in China. The main contents of the thesis are as follows.The first chapter is an overview of the theories related to foreign investment market access. Based on the discussions about relationship of foreign investment market access and national treatment as well as negative list, the chapter then makes analysis of China’s relevant legal provisions of Catalogue for the Guidance of Foreign Investment Industries and of Negative List of Shanghai Pilot Free Trade Zone. The chapter points out that Negative List of Shanghai Pilot Free Trade Zone is a new exploration of China’s foreign investment market access.The second chapter is about the capital composition of foreign investment. The chapter introduces the main content of foreign capital composition, and how China’s foreign investment enterprises laws and regulations stipulate. Lastly the chapter puts forward that the operation of capital composition of Negative List should follow the relevant provisions of foreign investment legislation.The third chapter is the scope of foreign investment. The chapter first introduces the definition and theoretical basis of the scope of foreign investment. Then the chapter discusses the scope of foreign investment (forbidden industries, restricted industries and allowed or encouraged industries) from the respective of legislations and experiences of other countries, Catalogue for the Guidance of Foreign Investment Industries and Negative List. Lastly the chapter points out that Negative List plays a leading and exploratory role in expanding the scope of opening up and achieving the equality of domestic and foreign investment.The fourth chapter is the performance requirements of foreign investment. Firstly, the chapter introduces the definition and then discusses the four important aspects of performance requirements of foreign investment from the respective of Catalogue for the Guidance of Foreign Investment Industries and Negative List. Lastly, the chapter puts forward that specific restricted measures of performance requirements of foreign investment should be cleared to improve the transparency of Negative List.The fifth chapter is approval system of foreign investment. The chapter firstly introduces the definition, theoretical basis and types of approval system of foreign investment, and then introduces China’s related provisions and regulations and those of Shanghai Pilot Free Trade Zone. Lastly, the chapter puts forward that the application of filling/reporting system of foreign investment is a reform of approval system of foreign investment market access.The last part is the conclusion. The author makes a summary and puts forward that pre-establishment national treatment and negative list foreign investment market access management mode applied in Shanghai Pilot Free Trade Zone is an institutional innovation in China, but still needs to be improved and adjusted continually. By piloting the above market access management mode, the equality of domestic and foreign investment will be achieved nationwide in the future, so as to realize the economic coordination and sustainable development.