Study On The Issues Of Investment Pre-establishment National Treatment

Pre-establishment national treatment, a pattern of foreign investment access rules, is an extension of the national treatment. Due to developed countries’ huge push and its own functions of protecting and attracting investors and their investment, performing outstandingly in the bilateral and the multilateral investment agreements recent years, Pre-establishment national treatment has become the developing trend of international investment treaties. What’s more, Pre-establishment national treatment has been accepted and become the key point of the current foreign investment management system reforming round in our country.With the deepening of the reform and the enlargement of open borders, also in order to attract more foreign capital, advanced technology and excellent management,promote overseas investment and protect the domestic economic security, China is practicing actively in both the domestic and international laws. On the international aspect, in May 2013, China and America decided to start the bilateral investment treaty negotiations once more, then again the Pre-establishment national treatment set before china. After nine rounds of intensive negotiations, China not only accepted the Pre-establishment national treatment, but also finished checking the agreement of BIT with USA, and would start the negotiations of negative list. At the same time, in September 2013, the management mode of negative list was first tried in Shanghai Free Trade Zone. Till now, the negative list has two editions, that is, the 2013 edition and the 2014 edition. On the domestic aspect, in order to response to the call of the third plenary session of the eighteenth meeting, our country revised many normative documents in year 2014, and on Jan. 19, 2015, published Foreign Investment Law of The People’s Republic of China(draft), which designed investment access system; one could match the mode.By analyzing the basic theories of Pre-establishment national treatment, comparing the present application circumstances of domestic and foreign Pre-establishment national treatment, this paper puts forward some relevant measures concerning following questions: for China, on the premise of accepting Pre-establishment national treatment, how to undertake obligations, how to establish domestic legislative system, How to protect national security, how to keep economic stability and how to complete its BIT writing modes. All these are the key points of this paper.This paper is divided into four chapters, including:The first chapter puts forward the problem of Pre-establishment national treatment. By discussing the origin and development of Pre-establishment national treatment, it analyzes some relevant concepts, such as national treatment, investment access rules, negative list and so on. Further, the meaning of Pre-establishment national treatment is analyzed, and its advantages and disadvantages are evaluated. And then discuss current opportunities and challenges for China’s acceptance of Pre-establishment national treatment,The second chapter analyzes the application status of Pre-establishment national treatment in China. On the basis of stipulations in domestic legislation and international treaties which China has signed, It analyzes the stipulations of provisions of Pre-establishment national treatment, laying a foundation for latter analysis.The third chapter discusses the foreign practices and inspirations of Pre-establishment national treatment comparatively. Taking the domestic legislation of representative developed and developing countries as examples, It mainly analyzes the use of Pre-establishment national treatment, from which gets inspiration for China.The fourth chapter discusses China’s selections and countermeasures on Pre-establishment national treatment. This chapter recommends countermeasures and suggestions on carrying out Pre-establishment national treatment, that is, complete domestic legislation, formulate BIT model in China, explore the international investment treaties and Intensify the protection for overseas investment in China.