Study On The Accountability Of National Security Review Measures On Foreign Investment Access

To strengthen the right to control,more and more host countries begin to implement national security review measures on foreign investment access.However,due to the fact that national security review measures on foreign investment access relates to national security,the review process is often lack of transparency,and thus the legitimate rights and interests of investors are difficult to be effectively protected.Therefore,it is essential to entrust accountability on the national security review measures on foreign investment access to prevent them from being used as protectionist measures.Also,taking into account the fact that national security review measures on foreign investment access shall comply with the domestic law of the host countries and also international investment laws,it can be concluded that there are two possible accountability,which are the judicial accountability in host countries and the accountability under international law.On the one hand,as countries have different protection levels towards investors,the provisions concerning the accountability of national security review measures on foreign investment access are not the same.Therefore,it is necessary to explore the specific provisions of several representative developed countries like the U.S.A and Germany,to provide some ideas on the improvement of China's domestic accountability of national security review measures on foreign investment access.On the other hand,whether the international legal instruments provides the accountability of national security review measures on foreign investment access is the other issue that needs to be explored.By selecting the relevant regulations of the the WTO mechanism and international investment agreements which are most related to international investment,the international suitability of national security review measures on foreign investment access can be studied to some extent.First,international investments related to trade in goods is also an important aspect of WTO jurisdiction.Thus,the national security review measures on foreign investment access may also involve WTO dispute settlement mechanism.Second,since the national security review measures on foreign investment access are related to international investment,if the investor's home country and the host country have signed international investment agreements(IIAs),when the host country implements national security review measures on foreign investment access,investors may invoke the relevant provisions of the IIAs and request the International Arbitration Tribunal to adjudicate the measures.This article mainly includes five parts.The first part mainly introduces the concept,characteristics,purpose and the reason of in need of accountability of national security review measures on foreign investment access.The second part mainly introduce the accountability of national security review measures on foreign investment access,including its concept,legal basis,prerequisite and the realization paths.The third part introduces the relevant laws and regulations of the national security review measures on foreign investment access of the developed countries and regions like U.S.A,Australia,France and others,and analyzes the legislative model and practices concerning the accountability of national security review measures on foreign investment access.The fourth part,through the relevant laws and regulations of the WTO and the relevant rules in the international investment agreement,sums up the accountability of national security review measures on foreign investment access under international law.The fifth part is accordingly analyzing the suitability of current national security review measures on foreign investment access in China and the “Foreign Investment Law(Draft)”.Finally,on the basis of analyzing the above problems,this paper draws the inspiration for the improvements of the national security review measures on foreign investment access of China and provides an idea for China to better cope with the accountability under international law.