Research On Forced Technology Transfer From The Perspective Of International Investment Law

Forced technology transfer is closely related to foreign investment activities.From the perspective of international investment law,it is a form of fulfillment of requirements and the embodiment of the regulatory right of the host country.Disputes over forced technology transfer mainly involve conflicts of interest between the regulatory right of the host country and the protection of investors and intellectual property rights.The existing technology transfer rules of the World Trade Organization(World Trade Organization,hereinafter referred to as WTO)lag behind,and there are different positions on forced technology transfer in investment agreements of different countries.It is urgent to build a legal system of international technology transfer that includes promoting technology transfer,limiting technology monopoly and regulating multilateral rules on forced technology transfer,so as to find a balance between the interests of developed countries and developing countries on forced technology transfer.In order to deal with disputes over forced technology transfer,China should improve its legislation on technology transfer,establish rules prohibiting forced technology transfer in investment agreements,and include exception clauses to protect the public interests of host countries and promote sustainable development.The main body of this paper includes the following four chapters.The first chapter is an overview of forced technology transfer from the perspective of international investment law.Compulsory technology transfer from the perspective of international investment law is essentially the requirement of technology transfer performance,which includes the rules of technology transfer before market access and the discriminatory license after market access.Due to the disparity in technological level between the north and the south,developed countries have monopolized core technologies for a long time.In order to get rid of the dilemma,developing countries have no choice but to adopt the policy of "trade the market for technology" and take technology transfer as a compulsory condition for foreign investment access and management,resulting in the conflict of forced technology transfer.The second chapter is Compulsory technology transfer in international investment rules.On the whole,the regulation of forced technology transfer in international investment agreements has developed from limited prohibition to extensive prohibition.However,from the perspective of region,there are still great differences between countries(regions)on the issue of forced technology transfer.At present,there are still no unified multilateral rules for international technology transfer.There are some problems in the prohibition clause of technology transfer performance requirements in international investment agreements,such as unclear definition standard of compulsory technology transfer,too large coverage of technology transfer performance requirements and limited application of exception clause.The third chapter is Forced technology transfer in international investment dispute settlement practice.The United States and Europe have filed complaints against China’s forced technology transfer measures with the WTO one after another,but there is no multilateral rule to promote technology transfer or regulate technology monopoly under the WTO legal framework,nor is there any multilateral rule directly prohibiting countries from implementing forced technology transfer,so it is difficult for the existing rules to settle disputes over investment-related forced technology transfer.In the practice of investment arbitration,there are different standards in the interpretation of the arbitration tribunal on the recognition of "compulsory" requirement and the exception clause,which should be effectively dealt with when we sign investment agreements with foreign countries.The fourth chapter is Implications for regulating forced technology transfer in China.The disputes over forced technology transfer between China and the United States and between China and the European Union reflect two practical problems.One is that the WTO rules lag behind and an international technology transfer system that conforms to the principle of sustainable development is urgently needed.Secondly,there are potential problems in the legislation of compulsory technology transfer in our country.We should examine whether the relevant provisions are in conformity with the existing rules of WTO and China’s WTO commitment and perfect the provisions of domestic laws on compulsory technology transfer.The provisions of China’s investment agreements on forced technology transfer are too simple and lack of exception clause prohibiting forced technology transfer,which should be updated and improved in time.