Study On The Pre-establishment National Treatment Of Foreign Investment In Chinese Market

At present,the main mode of international investment is to accept the foreign investment management mode of pre-establishment national treatment and negative list to make investment liberalization and investment protection parallel.The global economy has become a fast-moving track,derailment will inevitably lead to backwardness,so its own positioning and strategic choice has become the primary problem of a country.Based on the basic theory of national treatment before foreign capital access,this article discusses the dialectical relationship between national economic sovereignty and national treatment,then the practice of the treaty law of the national treatment before foreign capital access,and gives the enlightenment to China's national treatment before foreign capital access.According to the study of China's foreign capital establishment system represented by Shanghai pilot Free Trade Zone,this article puts forward some suggestions on China's foreign capital access system.Finally,the foreign investment law of the people's Republic of China will come into force on January 1,2020.Article 4 clearly stipulates that "the State implements the management system of pre-establishment national treatment plus negative list on foreign investment".As this is an effective law for the whole country,hereafter put forward my own opinions on whether this system can be successfully implemented in the whole country,whether there will be obstacles and how to solve the obstacles.The first chapter introduces the basic theory of pre-establishment national treatment.The pre-establishment national treatment of foreign capital originated from the traditional national treatment.The principle of national treatment first entered the field of international economic law as an adjustment of international trade,containing the concept of "non-discriminatory principle".The idea of "principle of formal equality of free people" in ancient Roman private law was the initial embodiment of this idea.The key to distinguish the two lies in whether national treatment is reflected in the "access" or "operation" stage in the field of foreign investment Pre-establishment national treatment refers to the treatment enjoyed by investors of a contracting state when they enter the host country's investment market,which is not lower than the legal status of their own investors,and extends to the stage before the occurrence and establishment of investment,that is,the stage of "access".This is a more comprehensive treatment in the field,a more extensive treatment,a deeper development of national treatment,and a high-level commitment to investment liberalization.Then through the analysis and comparison of the three foreign investment management modes of national treatment,fair and equitable principle and most favored nation treatment,as well as the standard of foreign investment treatment of adding negative list,the relationship between national treatment and national economic sovereignty before access is discussedThe second chapter analyzes the possible obstacles in the process of implementing the national treatment before admission.The concept of "national" of national treatment before access is not particularly clear in the socialist market economy with Chinese characteristics.Foreign-funded enterprises are also private enterprises.However,China has a special negative list of market access for domestic enterprises to regulate.For foreign-funded enterprises,they are restricted by the negative list of foreign access when they are allowed to enter.Is this in line with the connotation of national treatment.For the newly established foreign-funded enterprises and the original three-capital enterprises to be changed into limited liability companies or joint-stock liability companies within five years,some of the concepts involved are direct conversion or retention of the original title.The scope of the security review is only for the areas in the negative list,or for any industry that may have a significant impact on national security under the National Security Act Domestic enterprises are subject to the adjustment of the Interim Measures for enterprise information publicity.For foreign-funded enterprises after access,whether the administrative measures for information reporting of foreign-funded enterprises specifically formulated conflicts with national treatmentIn the third chapter,by comparing the different domestic legislation of national treatment between developed countries and developing countries,and combining with China's national conditions,the article analyzes and summarizes the relevant systems that can be used in China.The domestic legislation of the United States was the first to establish the system of pre-establishment national treatment plus negative list Canada's domestic legislation does not clearly define pre-establishment national treatment,but it can be seen from its bilateral investment signed with multiple countries the shadow of national treatment plus negative list before access.In developing countries,the Philippines has established list A and list B according to the Foreign Investment Act 1987 and the Republic of 7042 law.In the three amendments to the foreign investment act of Vietnam,it is not difficult to see that the domestic economic level of Vietnam has not yet reached a very open level,so it is mainly to develop the domestic economy,and the national treatment policy for foreign investment access has not yet been established.By analyzing the withdrawal of pre-establishment national treatment in the relevant templates of international bilateral and multilateral investment agreements,and discusses the future development path of China's use of national treatment in combination with the time of China's investment treaties.The United States model bilateral investment treaty(1994)first mentioned the national treatment before foreign investment access,introduced the national treatment into the stage of foreign investment operation,and excluded the special terms of investment access.The feature of European access model is to encourage investment liberalization and protect the discretion of host country.NAFTA initiated the foreign investment access mode of "pre-establishment national treatment plus negative list" in regional investment agreements for the first time,and then the US Mexico Canada agreement(USMCA)also adopted the above mode.The word"establishment" appears in Article 3 of the multilateral investment agreement(MAI),and the provisions allow the Contracting States to make exceptions to national treatment,which shows the position of applying the national treatment of foreign investment access to the draft.With the implementation of the "belt and road"strategy and the proposal of Shanghai Free Trade Zone,the trial and implementation of the management mode of "pre-establishment national treatment" and "negative list"have been ushered in.By using the experience of foreign legislation and international bilateral and multilateral investment agreements for reference,and combining with China's economic level,historical conditions and other factors,can get some enlightenment on the terms of national treatment in the signing of bilateral and multilateral investment agreements in the future.The fourth chapter puts forward suggestions to improve the national treatment system before access.In terms of legislation,it is necessary for the foreign investment law to expand and enrich the considerations of security review for the concept of national security,and it is appropriate to expand the interpretation of the definition of national security in Article 2 of the national security law.In addition,after the foreign investment law comes into force,the three capital enterprise law and the derivative implementation rules and departmental rules are abolished according to law.Then,the contracts related to foreign investment may only apply to the special provisions of Article 126 of the contract law on foreign contracts.In the bilateral investment agreements signed with foreign countries,the definition of investment and the dispute settlement mechanism should be consistent with the foreign investment law.In the supporting system,the negative list of market access and the negative list of foreign investment access will continue to integrate and develop,and then promote the overall transformation and upgrading of China's market access.The safety review should only focus on the areas involved in the negative list,and continue to improve the industry safety review information involved in the negative list,the quality standards of national security,and the transparency of the review process.