Differencesand Compatibility Between Nation Security Review On Foreign Investment And Essential Security Exceptions In IIAs Of China

From 2011,there have been three laws and regulations on national security review on foreign investment.With The Draft on Foreign Investment Law,the initial legal system of national security review on foreign investment of China has been established.Pursuant to the legislators' and scholars' focus on this topic,although the law on national security review of China is still needed to be improved for the scale of review,the standard of review and exclusion of judicial review,it has already been improved from traditional national security concept to overall national security concept.In respect of essential security exceptions in IIAs of China,as important exceptions and exclusions of national security review in the field of international law,they should be complementary to the national security review system,however,our national security exceptions are much more outdated.Recently,China has engaged in many IIAs.Among them,it is not rare to see essential security exceptions.However,there is no contemporary models for our essential security exceptions,and we still prefer to use GATT Article 21 as the traditional model.Theoretically,the essential security exceptions of China could not cover all domestic national security reviews.That is to say,it is possible that foreign investors could file suits based on IIAs' dispute settlement organization for domestic national security review breaching IIAs.UNCTAD once summarized several classical models for essential security exceptions,and they were classified into three groups: conceptions or listing cases,self-judging clause or non-self-judging clause,and alternative to general clause or in addition to a general clause.Each kind of exceptions has its own advantages and disadvantages,and there is no best choice.When a country is choosing the style of essential security exceptions,it has to consider its position and national power in the IIA negotiation.A self-judging clause with vague conceptions as an alternative to a general clause seems to be the highest level of protection for national security,however,it is not the best choice for host countries.As the national power is increasing,China has double roles in the international investment world: a capital exporting country and a capital importing country.If we emphasized national security protection excessively,foreign investors might be too afraid to invest in China which would breach the main purpose of IIAs for investment promotion.The exclusion of judicial review for national security review and essential security exceptions are also hot issues.Scholars consider national security reviews are excluded from judicial review all the time because they have political elements.Although Chinese law does not explicitly stipulate the exclusion of judicial review for national security review,Chinese scholars also think our domestic national security review is excluded from judicial review.Some scholars consider that we may rely on international dispute settlement system,such as ISDS,to deal with national security review disputes.However,it is difficult to search evidence and information in national security cases,therefore it is not reasonable to rely on international dispute settlement.As for the exclusion of judicial of essential security exceptions,we are discussing two questions: first,whether the international dispute settlement organizations have jurisdictions over the scale of essential security review.Secondly,whether the dispute settlement could interfere the results of domestic national security review.About the first question,there is no IIA which would stipulate that DSB did not have jurisdiction over the scale of essential security exceptions.But the reality is that it is very difficult for DSB to make decisions about the scale of security exceptions.For the second question,it seems to be similar to the former question,but the key point is that whether the international DSB could have jurisdiction over domestic national security review decisions.From the practical view,most of our IIAs chose to avoid this question,which may cause future disputes.Chinese scholars have studied national security review for a long time,but few of them would discuss the differences between domestic national security review law and essential security exceptions.This thesis will focus on this topic discussing the balance between national security review and essential security exceptions.Except the preface and conclusion,the body of this thesis consists of the following four chapters:Chapter I gives an introduction of related laws and regulations in China on national security review and essential security exceptions,such as scales,content and standard,establishing the base for the following discussion.Chapter II focuses on the comparison between national security review and essential security exceptions.Chapter III is for international experience on essential security exceptions.From the aspect of trigger,restriction and scale,summarize the classical examples and offer experience for our national legislature.Chapter IV is about advice.Basing on former analysis and international experience,try to offer several pieces of advice for our domestic law on national security review and essential security exceptions.