The Legal Status And Applicable Of Negative Listing In Our Country

“Negative listing” is a new management model in China(Shanghai) Free Trade Zone(SFTZ). Specifically refers to a listing that a country listed explicitly for telling others which areas are not allowed for foreign investors in the international trade process. On the contrary, fields and industries out of the listing are opened to foreign investment. If an industry does not written in the negative listing, it means that the industries will open to foreign investors continuing in the future. But our attitude toward foreign investment has been more conservative after the reform and opening. The introduction of foreign access policies is also cautious. Since that time, many domestic industries have just begun, and also relied on the national policy support and encouragement. But the current new situation and the international investment rules is calling for the further opening.Under this situation, the Shanghai government formally promulgated an negative listing in SFTZ on September 29, 2013. They transferred the approval system of foreign investment projects and the approval system of foreign-invested enterprises’ establish system. Then on the June 30, 2014, the Shanghai government promulgated the "FTA foreign investment access special management measures(negative listing)(Revision in 2014)"( "Negative Listing 2014"). It further liberalized parts of the foreign investment in the industry.Although the negative listing is a little rusty for China’s foreign trade process, but actually the foreign countries have carried it out for many years and the theoretical analysis of the relevant negative listing is better than we do now. Academic view on the negative listing is of an exceptions to the principle. "Unless the government agencies and industry in this area has been restricted, otherwise national treatment to foreign investors will be access", reflects the ideas "no prohibition, no obstruction". For example, if a country claims that its conduct legitimate, it will hold the view that there is no evidence showing prohibition in international law, rather than authorized in international law.In addition to the "no prohibition, no obstruction", the other principle with negative listing is the "national treatment," which refers to the specific meaning of civil behavior in the international economic, financial and trade, etc.. A country will give foreign citizens(including corporate and individual) of civil rights same as its citizens(including corporate and individual). In actual policy specification, the negative list and the national treatment principle is mutual complementarity and mutual explanation. The host country will not only commit several obligation of national treatment, but also exclude some industrial areas which may threat to the domestic economy with negative listing.However, even the academic community thought that the former national treatment will bring heavy losses to our domestic business and economy development. So, at least at that time is not appropriate to do so. Therefore, before the introduction of the negative listing, China’s adjustment of foreign behavior is the "Catalogue for the Guidance of Foreign Investment Industries", which is by definition "encouraged, restricted, prohibited" to manage foreign investment. The "Guiding Catalogue" management policy impact us so much that the negative listing is still using its rules. The US Chamber of Commerce in China once commented publicly that it will actually make it difficult for SFTZ to achieve the vision of free trade in the region.Even so, the importance of using negative listing in SFTZ can not be ignored. For example: as long as outside the negative listing’ areas, the approval were replaced by the record. Under the filing system, even for foreign investors, the fastest way to get business license will be in four days. So the effect of the administration is unprecedented. Because foreign access behavior is an important way to reflected in a country’s economic sovereignty and territorial priority. So while accepting foreign capital, the host country must make sure the stability of the domestic economy and the level of health. So the establishment of negative listing is meaningful for protecting their economies.Due to the fact that there is no uniform standard on the negative listing’s constitution, so that countries can develop their own negative listing based on its own national conditions. Accordingly, the quality of the negative listing is reflected to the level of the country’s policy. The shorter the negative listing is, the greater attraction of foreign investment. But the risk of foreign access to the country corresponding to bear the greater. So, the negative listing still should be improved although it has been modified,Firstly, for example of the United States, they have 40 items in the three negative listings with the Republic of Korea while we have 139 items. So, if we just put the existing regulatory provisions for another way, the negative listing will not be helpful on the development of economic, but will influence the authoritative of policy.Secondly, our negative listing was not supported by the laws and regulations, so the implementation process of supervision may also play a discount. Because of the legal status and effect of the negative listing is very limited, so we should focus on laws and regulations.In addition, for the country has been running the administrative approval mode for too long, so no matter government or regulatory agencies will take their time to adjust for the transition from manager to governance role. According to this, they will face a challenge of transform. And the transform will effect the running of the negative listing.To this end, the author puts some suggestions to be able to inspire the implementation of the negative listing.Firstly, the negative list should be shorter. Most of the 152 items of new negative listing are copied "Catalogue for the Guidance of Foreign Investment Industries," so the original presence of foreign entry barriers is still exist. So we must try to shorten its length. If we made a big one, even if we are more open in the regulatory approach, it cannot do much help.Secondly, referring to the legal supporting for negative listing, the author suggest that put some legal basis after its rules. It can make the negative listing more authoritative and do help improving its transparency. Made our attitude towards foreign investment clear will be beneficial and harmless.Thirdly, given the rapidly changing dynamics of international market economy, even though the negative list should remain stable, the relevant departments should keep keen to the market. In addition to the market, the changes of the upper law can influence the negative listing. I do think that timely adjustments will be helpful, as long as you can ensure its rate.Finally, due to the fact that the executive does not have the power of interpreting, so the ways and means of implementation is critical. As long as they can agree on the goal, all the developed negative listing needs is only time.We looking forward to the healthy growth of negative listing. Then it can promote the economic development.