Research On Entity Standards Of The National Security Review System For Foreign Investment In The United States

With the deepening development of economic globalization,capital flows between countries are becoming more and more frequent,and the conflict between foreign investment and national security cannot be avoided.As the largest economy in the United States,the United States started to conduct special legislation on the national security review system for foreign investment at the earliest.Its national security review system has accumulated enough practical experience in legislation in the process of improvement.Therefore,the US foreign security review system has It is worth studying.In the context of the continuous deepening of China's reform and opening up and the gradual relaxation of foreign investment access restrictions,China has also begun to give more attention to foreign investment national security review systems.This article aims to analyze the review objects and review standards of the US foreign investment national security review system,Combined with China's unique national conditions,to provide suggestions for the improvement of China's foreign investment national security review system.This thesis is divided into four parts:The first part mainly introduces the history of the US national security review system for foreign investment,and is divided into three sections.The first section mainly introduces the change of US attitude towards foreign investment frompursuing investment freedom to restricting foreign investment at an early stage.Since the early 20 th century,the United States has introduced a series of laws to restrict foreign direct investment from entering certain industries in the United States.The second section introduces the formal establishment of the national security review system for foreign investment in the United States.The "Exxon-Florio Amendment" promulgated by the United States in 1988 became the first special legislation on national security review for foreign investment M & A Formally established the US national security review legal system for foreign investment.Section III introduces the new development of the foreign investment security review system in the United States.The Foreign Investment and National Security Act(hereinafter referred to as "FINSA")passed by the United States in 2007 has further modified and modified Section 721 of the National Defense Production Act of 1950 Adjustment.In 2017,the United States proposed the "Foreign Investment Risk Assessment Modernization Act of 2017"(hereinafter referred to as "FIRRMA")as part of the content of the National Defense Authorization Act for fiscal year 2019(hereinafter referred to as "NDAA")signed by US President Trump in 2018 FIRRMA has officially entered into force,and FIRRMA has particularly strengthened the national security review system for foreign investment.The second part is mainly to introduce the review objects in the national security review of foreign investment in the United States.It is divided into three sections.The first section is to sort out the components of the review object.To define the scope of the review transaction,first of all,it is necessary to clarify the "foreigners",Basic elements such as "American" and "type of investment".The second section further analyzes and summarizes the three basis for the determination of the review object in the United States on the basis of the constituent elements of the review object: the "acquisition of control power",the nature of the "target company",and the nature of the "acquisition company".The third section makes its own analysis and understanding of the changing trend of the US review objects.The third part focuses on the analysis of the review criteria in the national security review of foreign investment.It is divided into four steps.The first step is todeconstruct the meaning of the "national security" fuzzy concept in the national security review system.There is no definition of "national security" in the legislation,and the legislative choice of the United States,that is,the development from the early focus on national defense security to the emphasis on national defense security and national economic security.The second step,since "national security" does not have a clear connotation,it is necessary to fix its extension as much as possible,that is,the factors that the US authorities need to consider when determining the harm to "national security",and at the same time summarize the considerations in the review practice factor.The United States promulgated the 2008 Guidelines for the Safety Review of Foreign Mergers and Acquisitions.In order to help the transaction parties to judge,the 2008 guidelines provide a detailed summary of the types of transactions that are prone to national security threats.The third step,the judgment of national security risks mainly includes the host country's dependence on foreign suppliers,the leakage of technology and expertise to other countries,and the infiltration of foreign capital or destruction of key industries.In addition,when combing and analyzing the review object and review standard,it is accompanied by case.There are mainly CNOOC's acquisition of Unocal in the United States in 2005,Huawei's acquisition of3 COM in the United States in 2008,Huawei's acquisition of 3LEAF in the United States in 2011,and the acquisition of Oregon's wind power in the United States by Rawls in 2012(Sany Group's affiliate in the United States)Projects and other cases of Chinese M & A failures.The fourth step is to comment on the changing trend of the US censorship standards.The main context of the fourth part is to introduce the legal origin of China's national security review system and the analysis of the existing problems of the system.based on China's national conditions,it selectively draws on some of the contents of the US system and puts forward corresponding suggestions for the improvement of China's foreign investment national security review system.China has relatively little legislation on the national security review of foreign investment,and the “Notice on Establishing a Security Review System for Foreign Investors' Mergers and Acquisitions of Domestic Enterprises ”issued in February 2011 clearly specifies the national security review system for foreign investment and mergers and acquisitions in China.The “ Interim Provisions on Matters Related to the Implementation of the Safety Review System for Foreign Investors' Mergers and Acquisitions of Domestic Enterprises ”issued in March 2011 mainly specifies the materials and procedures to be submitted for safety review applications.The "Foreign Investment Law",which came into effect on January 1,2020,is mainly made in principle,and its specific content,such as the scope of the review,the content of the review,and the review standards,need to be detailed in further rules.After sorting out the legal system,it is found that China's security review system has certain deficiencies in terms of review targets and review standards.With regard to suggestions for measures that need to be further improved in China,the author believes that,on the one hand,from a macro perspective,establish the guiding ideology of foreign investment legislation under the premise of maintaining national security,and adopt a "generalization plus enumeration" type national security review standard legislative model.On the other hand,from a micro perspective,first of all,we must improve the target requirements of the national security review.Secondly,according to the current national situation,list the national security considerations that meet the actual situation.