| March26,2013, Framework of BRICS’ Trade and Investment Cooperation has beensigned in the third BRICS Economic and Trade Ministers meeting, the trade and investmentcooperation between BRICS in the future has been made a programmatic arrangements.Under this background, this paper makes efforts to study on foreign capital accesssubstantive conditions in BRICS by comparing and analyzing the relevant laws andregulations, and aims to identify the problems in relevant provisions and legal systems.What’sthe most important, it tries to disclose the legal obstacles in cooperation between BRICS andthe ways of clearing these obstacles. It is meaningful both in theory and practice，in theory itfills the gaps in study of foreign capital access substantive conditions in BRICS, in practice, itmakes suggestions to Chinese investors who want to invest in BRICS and policy makers whotry to enhance cooperation between BRICS.This paper is in accordance with the logic of “analyzing the laws and regulations, thenfinding the problems, then solving the problems.”it consists of eight chapters. Chapter Istudies on definitions of “foreign capital” in BRICS,and concludes differences betweendefinition standards and definition angles,then puts forward that a consistent definition of“foreign capital”must be stipulated,and the definition should consists of elements below:“properties can be used for investment”,“ways of investment”,“foreign investor”.Chapter IIintroduces the definitions of "foreign investor" in BRICS, and finds out the defects in thestandards of definition and the “forms of investors”,then the author suggests to define“foreign capital” in a unified standard and to broaden the range of forms of investors.Chapters III to Chapter VII respectively introduces the substantive conditions of foreigncapital access in BRICS.Chapter III studies on the investment areas in BRICS,the authorpoints out that foreign capital is strictly limited in this aspect and some countries haven’t laydown a law to regulate this question,and then puts forward that the forbidden areas andrestrained areas should be enumerated clearly and the national treatment should beapplied.Chapter IV studies on the shareholding radio of foreign capital access,it shows thelimitations in shareholding radio in restrained areas in BRICS,and points out that the gaps oflegislation and the strict limitation have been a substantive obstacle for cooperation betweenBRICS,then recommends to stipulate the range of restrained areas and relevant shareholdingradios clearly and all these limitations should be reduced in a period of time.Chapter V introduces the performance requirements of foreign capital access in BRICS,the author findsthat some requirements going against “TRIMs” are still applied in some countries and thetypes of performance requirements are various,then puts forward that requirements breaching“TRIMs” should be reduced recently,and all kinds of performance requirements should bereduced in a period of time.Chapter VI studies on security requirements of foreign capitalaccess in BRICS,it shows that the definitions of “national security” and the range ofapplication of security requirements are not clear,so the author recommends to define the“national security” preliminarily and the range of application should be limited in the“undertakings concentration in specific areas”.Chapter VII introduces the antitrustrequirements of foreign capital access in BRICS,the author considers that the contents ofantitrust requirements are vague and the range of application should be narrowed,then theauthor puts forward that the contents of antitrust requirements should be closely linked to“competition elimination”and the range of application should be limited to “undertakingsconcentration”. Chapter VIII is the summary of forgoing texts and the core part of thispaper.It concludes the contents of legal coordination of the foreign capital access substantiveconditions in BRICS in the form of “draft proposal”and demonstrates the innovations of thispaper. |
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