A Study On The Negative List Management Model Of China’s Foreign Investment Access System

At present, the management model of foreign investment of national treatment before admission plus the negative list has become the new trend of the international investment rules. Sino-US BIT negotiations basically entered a substantive negotiations based on national treatment before admission plus the negative list.Shanghai FTZ is actively pursuing a negative list of foreign investment management model. A number of experiences can be copied to promote to form will eventually be gradually extended to the country. At the same time, in 2015, the Ministry of Commerce promulgated <the foreign investment law(Draft for comment) >, which has made national treatment before admission plus the negative list system become a major highlight of the reform of China’s foreign investment system. Therefore, after the establishment of the Shanghai Free Trade Zone, Guangdong, Fujian and Tianjin free trade zone continue to implement the foreign investment management model of“the national treatment before admission” plus “negative list”.This paper starts with the legal basis of "negative list", and analyzes its practical significance. Combined with the North America, Europe and Japan and South Korea negative list of investment management model, it tells the problem and experience to have obtained in implementation process of the FTA negative list, puts forward a proposal to further promote the negative list of the management mode of foreign investment in China, which leads to form a set of the experience and system that "can be copied, can promote", thus make the negative list be promoted from FTZ to the country. Finally, it will promote the process of economic and trade liberalization of the maritime Silk Road region.The first part expounds the origin, national treatment before admission, the legal basis and practical significance of the negative list. The negative list not only reflects the legal basis of the "All is permissible unless prohibited", but also tells the legal concept of "Law without authorization is prohibited". Moreover, on the one hand, the negative list is beneficial to attract foreign investment; on the other hand, it isconducive to the deepening of reform and the construction of the "maritime Silk Road" in twenty-first Century.The second part analyzes the negative list of foreign capital management model in Europe, North America and Japan and South Korea, discusses the characteristics of various models and the principle of national treatment, summarizes the common points and different points of the three modes and their reference significance to our country.The third part discusses the negative list of China’s FTZ management practice.The negative list first begun in Shanghai Free Trade Zone pilot and achieved promotion experience can be replicated, then it is further implemented in Guangdong,Tianjin and Fujian free trade zone. At present, a total of three version of the negative list, Shanghai municipal government issued two Edition: 2013 edition and 2014 edition of the negative list, the latter is the revised version of the former, the two version is only performed in the Shanghai free trade zone. In order to promote the negative list management model to the country, the State Council promulgated the2015 version of the FTZ negative list, applicable to Shanghai, Guangdong, Tianjin and Fujian free trade zone.The fourth part mainly discusses the challenges faced by the negative list of free trade zone in China. Although compared to the 2013 edition and the 2014 edition of the negative list, the 2015 version of the negative list has cut sharply restrictions of foreign investment admission, enhanced the openness and transparency, but there is still room for improvement.The fifth part discusses the improvement suggestions of the negative list in China.China’s 2015 version of the negative list still needs to further improve the openness and transparency. So far, Foreign Capital Management Act is difficult to adapt to the rapid development of the economy, needs to conduct a comprehensive revision. At the same time, with the development of economy, the negative list should give attention to both openness and stability, China should retain the power to modify the negativelist, and should establish and improve the interpretation of the negative list and dispute settlement mechanism.