A Study On The Judicial Review Mechanism Of National Security Review In The International Investment Law

The National Security Review in the international investment law tends to act as a block in cross-border investment.Once occurs,the transaction is easy to be suspended or even closed by the host country because of a "national security" reason,resulting in a huge loss of time and money.It is particularly serious in the China's investment in the United States.Thus,transparency of the system is a reasonable pursuit to avoid such losses,but in the area of the national security review,no country is willing to do so.Therefore,in terms of the unclear substantive standard,this article attempts to work on the dispute resolution and procedural due process to study how to minimize foreign investors' losses in the national security review.Since the national security review is inevitable and cross-border investment is diversified,effort to reduce transaction friction and loss should be made.Hence,because of the huge volume of transactions between China and America,this paper is going to focus on the most advanced and independent system,the United States' national security review of foreign investment.Moreover,based on deep-going analysis of the Ralls v.CFIUS case concerning the issue on the judicial review of the legal procedure by the court,this paper tends to seek a resolution to face the national security review for foreign investors or capital export countries in the course of capital output by imposing supervision on the area of national security review of foreign investment.The main structure of this article will be expanded from the following aspects.This paper will provide an overview of the national security review system.First of all,CFIUS power is strong from the view of the history of this administration but the substantive standard of the review is vague.Then,this paper is going to turn to simply study other dispute resolution to solve the problem of the national security review and to test whether other dispute resolution can also achieve the purpose of supervision,so as to identify the necessity of construction of the domestic judicial review.After that,this paper is going to analyze the case of Ralls v.United States Foreign Investment Commission.According to the judge's analysis and logic of several controversial points,combined with the use of domestic legislation of United States,this paper tends to explain the rationality and possible question for the judicial review of national security review of foreign investment.Then,this paper continue to analyze the legal principal and its balance of judicial review rights of national security review of foreign investment,which is mainly related to the balance of economic freedom and national security.Therefore,this paper is going to require check and balance mechanism and procedural due process to achieve this balance purpose.Finally,this paper tends to provide practical application method of the judicial review mechanism of the national security review of foreign investment from two angles of personal investors and the capital out-put countries to help them to face the national security review.