Judicial Review Of Foreign Investment Security Review In The United States

With the further expansion of global economy,Chinese enterprises are more and more encouraged to develop in the mode of "going global".Among them,the most important mode of "going global" is enterprise investment and acquisition.Most countries hold two views on the export of capital by enterprises from foreign countries to their own countries.First,they expect the addition of foreign capital to promote the development of domestic market,while on the other hand,they check and control foreign capital in order to protect the development of domestic capital.According to the blue book "Chinese enterprise globalization report(2017)",the United States is a major target country for China's outbound investment.Considering the influence of political and economic factors,the United States often takes legal procedures and political measures to prevent excessive capital inflow from China.Of all the impediments that the United States has taken,the most common is to restrict investment by our companies in the name of "National Security." The wind-farm merger of RALLS(RALLS,sany's U.S.affiliate)was halted by the committee on foreign investment in the United States(CFIUS)for national security reasons in 2012,the same year that President Barack Obama issued an executive order banning the project.CFIUS and the President,without elaborating on the national security threat,asked Ralls to relinquish all rights to the wind farm it had acquired.As for the suspension of the investment,sany group took a different approach from previous Chinese enterprises to "surrender to the soft",and chose to seek judicial review relief from the court.After losing the judgment in the first instance,sany group insisted on the appeal in the second instance,and finally won the judgment in the second instance.The successful judgment of this case not only confirms the justiciability of the procedure for making the presidential injunction,but also gives us the possibility to grasp the thinking of judicial review of this type of case by the U.S.court after analyzing the case,providing a "model" for China to safeguard its rights in the U.S.in the future.This paper takes sany case as the core to analyze the identification of national security in the examination of foreign investment in the United States,such as the definition of national security issues,its legislative process and review procedures.On this basis,this paper discusses the jurisdiction and one of judicial review standards of American courts for foreign investment security review:the constitutional principle of due process,then elaborates the application and development of the principle of due process in the United States,and analyzes the constitutionality of CFIUS and the President's behavior based on the principle.This will provide concrete and reasonable remedy for the trade disputes arising from China's investment in the United States in the future.The first part of this paper introduces the facts of the case,specifically explaining the basic facts,litigation process,dispute focus and influence of "sany group v.Obama case".The second part analyzes from which angles the us government determines that a transaction case poses a threat to national security,mainly showing the relevant legislative process and analyzing the issue that the us believes sany group has "transactions controlled by foreign governments" in the issue of national security.The third part is to analyze the jurisdiction of the court on the safety review of foreign investment.The fourth part focuses on the principle of due process,one of the examination standards of the foreign investment examination conducted by the court of this case,explains the application of the principle of due process in the United States,and analyzes its application in this case.The last part is to summarize the above analysis and put forward some practical Suggestions for the similar investment in the United States.