On The Negative-list-based Foreign Investment Access Legal System In The United States And The Reference To China

The negative list legal system(NLLS)for foreign investment access plays an important role in the liberalization of international investment and the maintenance of national security.Many countries have already implemented the NLLS,among which the United States(U.S.)has become a model for each country.The U.S.Bilateral Investment Treaty(BIT)NLLS is a concentrated reflection of the contemporary characteristics of the US negative list legal system.Comprehensive study of the BIT NLLS of the U.S.and the comparative study between China and the U.S.,help to summarize China’s efforts in the opening up state,the resulted achievements and the gaps between the two countries,where China will benefit from the generated suggestions for future legal system improvement.Based on legal analysis,we systematically analyze the legal basis and legal principles of the NLLS,and comprehensively explores the American BIT NLLS.Based on comparative analysis,we find problems and suggestions from the U.S.-China comparison,where the latest policies of China NLLS are collected.The legal basis and principles of the NLLS.From the perspective of the protection of public power and private rights,we analyze the legal basis of the NLLS of "forbidden without authorization by law" and "free without prohibition by law",and discuss from three aspects,i.e.,state,administrative agencies,and investors.Then we discuss the transformation of legal basis in NLLS and summarize seven major principles of NLLS.We also analyze the relationship among the legal basis,principles and power(rights).On the research of the U.S.BIT NLLS.Regarding the U.S.BIT NLLS,we conduct systematic research from three aspects: system evolution,system framework,and system content,where the system content consists of two parts: the body of the U.S.BIT agreement and the annex to the BIT agreement.By analyzing the U.S.BIT agreement and related domestic laws,we derived the features of the U.S.BIT NLLS.It includes mature and stable system,high degree of openness,clear logic of non-conforming measures list,and support of domestic laws,transparency,environment,labor,and state-owned enterprises have high standards and etc.Comparison of the NLLS between China and the U.S.Based on China’s latest NLLS,and on a correspondence with the US BIT negative list research,this article supplements the original content of China’s NLLS.Then,we conduct a summary from the aspects of the BIT agreement,the form of the agreement,the industry setting,the independence of the legal system,the predictability,etc.,and the comparative study of the NLLS between China and the U.S.We also discover the problems of China’s NLLS.These problems are mainly manifested in the stability of the system,the gap in transparency and predictability,the length of the list,and the completeness of the newly introduced legal system.Suggestions on improving China’s NLLS.On the basis of comparative research,according to the principle of administration according to law,and that administrative agencies and investors have laws to follow,we propose to comprehensively improve the stability,transparency and predictability of the negative list system;according to the principle of freedom and equality,we propose to simplify the negative list within education and culture field;in accordance with the principle of national sovereignty,and from the perspective of potential risks and emerging industries,we suggest that the legislation should take the financial innovation and risk prevention in to consideration.