Research On The Legal Issues Of Negative List Model Of Foreign Investment Access

As one of the internationally accepted economic and trade rules,the negative list of foreign investment access,which is adopted by some countries or regions,is the list of industries that prohibit foreign investment or limit the proportion of foreign investment.It is also a free mode of the modern international investment system.Since the first negative list of foreign investment was released in 2013,the construction of China's FTA and the negative list of foreign investment access have made considerable progress.In June 2018,the negative list of the national version and the FTA version was officially released.In March 2019,the ‘Foreign Investment Law of the People's Republic of China',which covers three other laws,was passed as the basic law in the field of foreign investment.The promulgation of the above-mentioned laws will not only help China deepen the reform and opening,optimize the business environment,but also lay a solid foundation for the realization of the new requirements of ‘All is permissible unless prohibited' and ‘the internal and foreign investment standards must be the same'.Despite some achievements,our negative list model of foreign investment access is still in its infancy.There are still many legal issues to be solved.On the one hand,examining the mechanism of the suspension of implementation of the law from the perspective of the vertical allocation of state power,the question of the legitimacy of the NPC Standing Committee as the subject of Authorization should not be ignored.On the other hand,problems such as low level of effectiveness,lack of legislative authority,and untimely adjustment of relevant laws and regulations still exist.The Article 4,paragraph 3 of the newly promulgated ‘Foreign Investment Law' confirms that the State Council is the formulation subject of negative list,which has greatly improved the effectiveness level of negative list of foreign investment in China.However,in consideration of the provisions of Article 8 of the ‘Legislation Law',the negative list of foreign investment access with the nature of administrative regulation still cannot meet its theoretical legitimacy and practical operational needs.As far as the judicial practice is concerned,foreign-related commercial disputes caused by investment disputes in FTA are unique and complex.It is inevitable that the traditional dispute resolution mechanism has difficulty handling those problems.To cope with the situation mentioned above,this paper puts forward that we should be in line with the international community and learn from the experience of extraterritorial advantages,especially the EU's negative list model of foreign investment access.From the two aspects of theoretical legitimacy and practical operability,this paper tries to offer suggestions on perfecting the negative list model of China's foreign investment access.In this regard,the author believes that the FTA should be given the statutory subject qualification.In order to fundamentally solve the problem of legal basis,we should also establish a standardized mechanism of the suspension of implementation of law in FTA.At the legislative level,it is necessary to further increase the effectiveness level of the negative list of foreign investment and confirm the National People's Congress and its Standing Committee as the formulation subject.At the same time,the legislative authority clauses should be added to the special management measures and the relevant laws and regulations should be amended and introduced timely.At the judicial level,in order to create a fair and just rule of environment and help solve investment disputes in FTA properly,it is imperative to establish and perfect the ad hoc arbitration,the FTA arbitration institutions and courts.