On The Development And Improvement Of The Negative List System Of Foreign Investment Admission In China

Since the establishment of the Shanghai Free Trade Zone in 2013,investment openness and trade facilitation have become the focus of attention,and the negative list system has been one of the important measures to promote investment opening,and has been continuously updated and improved in practice in recent years.It symbolizes the improvement of China's opening up to the outside world and also promotes the development of the free trade zone economy.More importantly,it has promoted changes in foreign investment laws and changes in the establishment and registration of foreign-invested enterprises.In 2018,the negative list system was extended to eleven free trade zones.In March 2019,China's Foreign Investment Law first established the pre-entry national treatment and negative list system from the legislative level of the National People's Congress.Once again,the results achieved under the negative list system have been described,and experiences that can be learned and replicated have gradually been formed and implemented on a larger scale.The negative list system is not unique to China,and has a longer history and origin in the international arena.The negative list system in the modern sense originated from the North American Free Trade Agreement signed by the United States,Canada and Mexico in 1994.The investment system combining pre-entrynational treatment and negative list,and then the negative list system is widely absorbed and borrowed by countries and regions,and is common in bilateral and multilateral trade agreements between countries and domestic foreign investment legislation.The negative list system fully reflects the pre-entry national treatment,that is,the national treatment given to foreign investors is not only in the operational stage after entering the host country,but further extended to the access stage,which can be widely applied to some extent.It is also attributed to its own characteristics.Compared with the positive list,it can protect its own industry through a centralized industry list and maintain national economic security.It also emphasizes the interaction between government-society-market diversification and initiative,thus promoting the government's transformation of functions.Highlight the role of post-event supervision and reduce restrictions on corporate access.In foreign practice,the legal regulations on negative lists and the forms and contents of lists in different countries and regions are quite different.This paper mainly chooses international practices that are closer to the nature of negative lists in China,mainly from three aspects.The first aspect is mainly from the typical countries that incorporate negative lists into domestic and foreign investment law,including Indonesia and the Philippines.These countries have earlier special legislation on foreign investment,and have made specific provisions on the negative list system.So they have developed a certain degree of experience in the development and improvement.The second perspective is a typical country that reflects negative lists from the perspective of industry policies.Although there is no specific foreign investment law in these countries,it is not possible to stipulate a negative list system at the highest legal level,but according to domestic industry policies,foreign investment The field is essentially a negative list.For example,according to the different regulations of domestic industry,Japan implements the pre-existing declaration and post-recording system for foreign investment registration.The government divides into differentlevels and adopts different retention measures and adopts a series of measures.Fully guarantee the transparency and fairness of its restrictive measures or policies;although India does not have a special foreign investment law before,it has made some industry policies,such as industry sectors,shareholding ratios,and approval procedures for foreign investment.All aspects of the regulations have something in common with the development system of the negative list system in China.The third aspect is a brief summary of the above international practices,this includes focusing on the coordination of management measures in the negative list and other laws and regulations,industry policies,and the clarity of negative inventory management measures,through the above international practice of negative lists,on the one hand,introducing the institutional development of the negative list,and on the other hand,providing some thoughts on the improvement of the negative list system in China.Before the implementation of the negative list system,China's foreign investment management has undergone a long exploration,based on the period,including the initial stage of reform and opening up,the stage of economic globalization,and the stage of joining the World Trade Organization;through the pilot in the Shanghai Free Trade Zone.China entered the era of negative entry list of foreign investment,the negative list system has developed to a new stage by 2018,and the signal released by this year's Boao Forum for Asia can show that the negative list will be introduced in 2019,and the restrictions will be further reduced.Through several years of practice,we can summarize the results achieved under the negative list system,including but not limited to the continuous reduction of restrictive management measures,the improvement of trade and investment facilitation,the transformation of government functions and the innovation of institutions.More importantly,it has had an important impact on China's foreign investment legislation system,and promoted the reform of China's "three foreign laws" and the transformation of China's foreign investment enterprise registration system.In affirming the positive benefits of the negative list system,we must also recognize that in this process of exploration and gradual improvement,there are still some problems in China's negative inventory system.First of all,China's "Foreign Investment Law" only provides a framework for China's foreign investment related issues,and still needs to formulate and update a large number of supporting policies.With the promulgation of the "Foreign Investment Law" and the "three foreign laws" gradually withdraw from the historical arena,the relevant approval and filing systems need to be updated and improved in the areas of foreign investment in the negative list and outside the negative list.The filing and approval methods established in accordance with the traditional "three foreign laws" are no longer time-sensitive and scientific.In the negative list system,there is a risk of evading the negative list through indirect investment.Article 2stipulates that the investment behavior includes the activities of foreign investors investing directly or indirectly in China,that is,the situation of “indirect investment”is increased,but there is no further explanation of what constitutes “indirect”investment.Secondly,there is an inconsistency between the negative list and other laws and regulations,which reduces the operability of the negative list in practice.Including conflicts between negative lists and industry policies,some of the restrictions on the negative list are not adequately described and there is no guidance on other laws and regulations,resulting in inconsistencies between the list and other foreign investment regulations.Finally,regarding the issue of the clarity of negative list measures,China's negative list consists of three parts: serial number,field,and special management measures.Other information is not listed,lack of disclosure of specific information,and textual expression.There are some vague terms,some industry restrictions or prohibitive measures,lack of certain operability in practice.In response to the above problems,the author tries to put forward somesuggestions based on the development of the domestic negative list system and some foreign practices.First of all,regarding the issue of the negative list system in the Foreign Investment Law,the examination and approval system and the filing system are respectively implemented in the negative list of foreign investment and the areas outside the negative investment list.This is the innovation and progress of China's foreign investment management system.We need to adhere to this method,but at the same time we need to update the filing or approval method before the entry into force of the Foreign Investment Law to cope with the smooth implementation of the new law.In addition,the foreign investment law needs to further stipulate indirect investment,and clarify which extend the foreign-invested enterprise can invest in the case of indirect investment.Secondly,it is necessary to enhance the coordination between negative lists and other laws and regulations and industry policies.The development of negative lists in China is not fully mature.Therefore,at this stage,it is necessary to continuously improve according to the provisions of the superior law,and to sort out conflicting laws,regulations and regulations,in particular,for different local industry regulations,it is necessary to make it conform to the upper-level law,and to fully disclose and describe specific legal provisions in practice,so that foreign investors can fully understand all the restrictions in the relevant laws.Finally,efforts should be made to improve the clarity of special management measures in our negative list,and fully disclose the basis for the formulation and implementation of special management measures in the negative list.This needs to be emphasized and improved in future version updates,a transparent and clear negative list needs to avoid ambiguous terms and make the necessary definitions and explanations to reduce ambiguity.