Study On The Crucial Divergences And Systematic Countermeasures Of The BIT Of China And USA

With the help of the US-China strategic and economic dialogue on the basis of new model of major power relationship,the two countries have made substantial progress for the BIT negotiation aiming to protect the interest of the domestic investors abroad and promote the economic and trading cooperation between the two countries.In view of the differences in the political system,economic level,legal system and interest demand,the two countries have disagreements regarding the national security review,labor rights,environmental protection,intellectual property right,rule transparency,financial openness,capital control and competitive policy,which can be reflected in BIT by the differences of the standard and content for the bid of negative list in which "national security and rule transparency" are the utmost concerned.According to the comparative research and empirical analysis,the American BIT has shifted its emphasis from protecting the oversea interest of domestic investors to promoting the investment of foreign capital to develop the omestic market.Moreover,it is also a highly-free investment agreement aimed to protect the domestic industry and oversea investment.In contrast,the Chinese BIT started late and has the disadvantage of the low level of openness.However.China has been exploring the mode of managing the foreign investment which focuses on the negative list.It also aims to further interface with the high-level investment rules in the international community.The negative list mode is not only aimed at the government of the host country.It is also a challenge revolving around the political system,economic regulation and approval system.Moreover,it has involved the open confrontation in tenns of political system,soft power and economic competitiveness.The disagreement regarding the BIT between China and USA focused on the negative list.The fundamental difference lies in the national security review and the transparency of the law and regulation related to the pre-establishment national treatment.Due to the different treatments for the domestic and foreign capital,it has made the law,regulation and policies for the foreign investment independent of the major system for investment management in China.Moreover,it has compromised the content concerning the national economic security in terms of clarity and transparency.In view of the difference and disagreement between Chinese BIT and American BIT,this paper has offered some advice on the improvement for the bid of negative list.Firstly,the BIT in China and USA should be based on the Sino-American strategic and economic relationship.On the basis of protecting the national security and public interest,they should improve the openness of the negative list.Secondly,the transparency of the negative list should be also enhanced from the perspective of information and process.Thirdly,they should explore the solution according to the classification of the negative list industry and the difference in the international popular practice.Fourthly,great efforts should be made to protect the legal rights of the labor.The labor should be entitled to the freedom from forced labor,freedom of association,the organization of labor union as well as collective bargaining.At the level of law,China should also try to build the legal system matching the negative list management.Hence,it can improve the bilateral investment system in terms of transparency and openness.