Study Of Foreign Access To The Legal System

Foreign investment access system always be regarded as affairs of host country. Host country can determine the foreign investment access system. So before 1980's, bilateral and multilateral investment treaties or agreements didn't involve investment access clauses. In recent years, developed countries, in order to output capital, urge developing countries to give national treatment for the entry of foreign investment, and exert pressure on developing countries through bilateral and multilateral investment treaties or agreements. Meanwhile, developing countries, in order to solve the shortage of capital and to improve technology level, need to utilize foreign capital. All these promote foreign investment access system to go in a liberalized way. The reform of foreign capital laws of various countries also appears to have a liberalization tendency, including legislative principle, investment field, investment qualifications, and so on. So recently, foreign investment access liberalization clauses appear frequently in bilateral or multilateral investment treaties or agreements, and this has become a world-wide legislative trend.This article includes four parts. The first part analyses the theory of foreign investment access system, including the international law basis and the main contents of the foreign investment access. The control on foreign investment access embodies mainly in four aspects, namely investment field, investment proportion, investment conditions, and the examination and approval system.The second part explains the differences of foreign investment access systems between developed countries and developing countries. Developed countries, with their strong economic strength, advanced technologies and high competition advantage of enterprises, often hold a rather open attitude to foreign investment. Developing countries always require certain limits on foreign investment access, since they want to protect their national economies in this way, especially juvenile industries. But from the 1990's, many countries that hold strict control policy on investment access began to reform their investment laws and to loosen therestrictions.The third part analyses the liberalization tendency of foreign investment access, including the whole features of reforms of foreign investment access systems of many countries, the liberalization tendency which reflected in WTO and bilateral and multilateral investment treaties or agreements. Whether to give foreign investment national treatment depends largely on a nation's economic development level as well as the power of competition of its enterprises. There exists much disparity between the economic strength of developed countries and that of developing countries. So developing countries always require certain limits on foreign investment access. While developed countries require the liberalization of capital movement. In this sense, the various bilateral and multilateral treaties or agreements are no doubt the outcome of struggle and compromise between or among different countries.The fourth part advises on how to perfect Chinese foreign investment access system. As a developing country, China should balance the development tendency of foreign investment access system with the domestic economy environment and consider all the factors relative to this issue. Firstly, China should comply with the liberalization tendency, but should carry on it step by step. Moreover, only when the foreign investment liberalization policy be connected with other elements of investment environment may the purpose of introducing foreign capital be reached. Therefore, it is not enough for China to attract foreign investment merely by giving a liberalization policy and various preferences. Instead, China should gradually carry on its reform on foreign investment access legal systems based on the perfect of overall investment environment. At the same time, China should participate actively in international multilateral investment legislation to strive for, together with other developing countries, a more advantageous negotiation position. Secondly, considering the present economic strength of China, it isn't mature for China to carry out an overall liberalization of investment accession. It is unfavorable for China toassume by multilateral treaties an universal national treatment obligation to foreign investment access. However, it is acceptable to do so by regional or bilateral investment agreements, for the mutually-given national treatment would not be expanded to other countries through the most favored nation clauses. Even under this arrangement, China should adopt a limited national treatment policy and make full use of the general exception to national treatment. As for the domestic legislation, China should gradually give foreign investment code or basic law, and reform the examination and approval system for foreign investment code or basic law, such as carrying on a system of combination of examination and approval with registration, further simplifying the procedures of examination and approval for transparency.