Research On The Protection Of Investors' Rights In The National Security Review System Of Foreign Investment

In the era of economic globalization,economic globalization has brought about capital globalization.Nowadays,foreign investment has become a pivotal part of the economic structure of countries around the world.Foreign direct investment is often regarded as an indicator of national economic and trade liberalization and international competitiveness.Under the interaction of the establishment of contemporary multilateral trade rules and regional economic integration,opening up the domestic market and introducing foreign investment has become the important policy of many countries.However,while foreign investment entering the host country market brings vitality to the domestic economy,it may also have a negative impact on the domestic industry of the host country.Therefore,while emphasizing trade and investment liberalization,countries have successively established national security review procedures for foreign investment as a tool to control foreign investment into the domestic market.On March 15,2019,China officially promulgated the "Foreign Investment Law of the People's Republic of China",officially incorporating the national security review system into legislation to ensure national security.National security is most often considered as a means of protecting the host economy's domestic economy,culture,sensitive industries,environmental labor,etc.,but because of its strong political inclination,procedural confidentiality,and mandatory results,It is likely to be abused as a tool for government intervention in the market.Therefore,it is necessary to explore and study how to balance investment liberalization and national security in the face of foreign investment.The balance between the two lies in the investor protection mechanism in national security review.In May 2009,OECD released the “Guidelines for Investment Policies Related to Host Country and National Security”,which listed four basic principles: the principle of non-discrimination,the principle of transparency or predictability,appropriate regulatory principles,and the principle of accountability,and the investor protection mechanism is an important way to achieve these four basic principles.The article adopts comparative research method and empirical research method,and studies the contradictory relationship between national security review and investor rights protection,combined with the legislation and judicial practice of investor protection in national security review Finally,the article provides feasible measures for China to choose the investor protection mechanism under the current international economic situation.The selection of investor protection rights in the national security review in the world is divided into two categories: internal intervention and supervision mechanisms and ex post judicial review mechanisms.The internal intervention and supervision mechanism is represented by the United States.The current US national security review system clearly stipulates that the president's decision on foreign investment transactions are not subject to any judicial review.Although the US national security review excludes ex post judicial review in the system design,its relatively comprehensive review procedures and the establishment of supervisory organs play an indirect role in protecting investor rights to a certain extent from the institutional framework.The post-judicial review mechanism is represented by the EU.The EU member states are more open to foreign investment and welcome foreign investment to promote its development.Therefore,the national security review behavior has not been specialized and politicized,but it has been regarded as a general administrative act.Therefore,it is necessary to accept the same judicial review,which provides the most direct protection for investors' rights.Based on the aforementioned legislative and judicial practices of the United States and the European Union,this paper studies the framework and development of China's national security review system,analyzes the problems existing in China's protection of investor rights in current national security review system,and discusses how China chooses the investor rights protection mechanism.Under the current effective national security review system in China,there are problems such as imperfect pre-consultation system,lack of supervision mechanism over power,and lack of judicial relief system,resulting in the ineffective protection of investor rights.Based on the current situation of China's domestic and foreign markets,China should properly learn from the national security review system in European Union and the United States,and further improve China's national security review system to protect the rights and interests of foreign investors and make investment environment better.