The Research On The Administrative Power Of Overseas Investment

The administrative power of overseas investment is a fundamental concept in international investment law.It refers to the power of investing country's administrative power against overseas investors and their activities.Also,it is a vital part of the country's economic sovereignty,as well as a significant way for the country to achieve its economic sovereignty.With the advent of economic globalization,there has been a substantial increase in overseas investment all over the world,which has become the momentum of globalization.Traditional overseas investment is mainly from developed countries to developing countries,whereas,according to the rapid economic development of developing country,the one-way investment direction has been gradually changed.Investment liberalization has incurred increasing numbers of government measures aiming to the promotion and protection of overseas investment.However,most countries,especially developing countries have paid bitter prices for their lack of such essential administration measures.Therefore,the administrative power of overseas investment is the prerequisite and rational choice for upholding and enhancing the countries' national interests.In 2015,China's overseas investment flow exceeded its foreign investment flow for the first time,meanwhile,China's overseas investment ranked the second in the world,which marked the beginning of China's role of net capital exporter.Thus,it is indispensable for China to persist and continue the administrative power of overseas investment.Along with the evolution of the international forces and the change of the world pattern,it is the game playing among the state actors,also the interest incentives and value orientations of such state actors,that decide whether the administrative power of overseas investment is to be exercised and how it would be exercised.Whether theoretically or practically,it is inacceptable for countries to limit and ossify the very concept of administrative power of overseas investment,because this very concept is an aggregation of abundant connotations.Under the background of investment liberalization,the focus of the administrative power of overseas investment has been changed.Developed countries have changed the form of administration correspondingly with the change of international economic situation.Nevertheless,in the economic transformation process,China,as well as other developing countries,should not simply copy the measures adopted by developedcountries without considering their domestic realities.Developing countries should transform their single administration mode into the comprehensive administration model that based on the national legal system of the administrative power of overseas investment.Currently,the overseas investment activities are more complicated,covering broader legal relations.Although there is no lack of concrete practice of the administrative power of overseas investment all over the world,the expected benefits of the practice of the administrative power are restricted,and the administrative power could not be implemented fully and effectively because of the lack of theoretical support.Besides,domestic and foreign scholars' researches on the administrative power of overseas investment are insufficient.Few of them pay attention to do a holistic study,summarize the basic theory of administrative power and come up with the fundamental principles and methods to complete the legal system of the administrative power of overseas investment.Consequently,we should explore the power from a new perspective,with new methods in a new era.This dissertation aims to make up for the deficiencies of existing researches,with adopting the literary analysis approach,historical analysis approach and comparative analysis approach,and the logical methods which combine the domestic and international laws.By studying the concepts,attributes and functions,the theoretic basis,the emergence and evolution of the power,the basic contents and the subjects,this dissertation strives to construct fundamental theories of the administrative power of overseas investment and puts forward the specific methods through which would promote the completion of China's legal system of the administrative power of overseas investment.Besides the part of introduction,the dissertation is divided into the following six chapters.Chapter 1 “The Concepts,Attributes and Functions of the Administrative Power of Overseas Investment” comes up with the concept of administrative power of overseas investment by expounding the logical connection and contextual differences between the administrative power of overseas investment and its relevant concepts from the perspective of economics,international political economy and international economic law.This chapter considers the attributes,characteristics and functions of the administrative power of overseas investment and points out that such administrative power is a vertical,foreign-related and comprehensive power,characterized by unilateralism,limitation and coordination and economy,with normative functions and social functions.Among them,the social functionsinclude the distribution function,the information transmission function,the incentive function and the integration function.Chapter 2 “The Theoretic Basis of the Formation of the Administrative Power of Overseas Investment” studies the political,economic and legal theory of formation of the administrative power of overseas investment.The administrative power of overseas investment serves the national political and diplomatic interests and is the tool for government to achieve its economical duty and to maximize the overall interests.This chapter clarifies that the economic sovereignty is the legal basis of the administrative power of overseas investment,then makes a further analysis and demonstration of applicable rules of the power,and points out that territoriality principle,nationality principle and effect doctrine provide the basis for realizing the power,which need to be restricted by the rule of reason.Chapter 3 “The Emergence and Evolution of the Administrative Power of Overseas Investment” emphatically probes the background and significance of the administrative power of overseas investment,and demonstrates the evolution with a dynamic and developing perspective.Then it analyzes the changing trend from weakening to persistence and regression.Theory of investment liberalization and role of state reshaping under global governance have created a full impact on the administrative power of overseas investment,resulting in an irreversible limit on such power.The experience of over-exploitation of sovereignty and the requirement of "co-regulation" model explain the reason for regressing to the insistence of the administrative power of overseas investment.On this foundation,this chapter puts forward some thoughts about the future development of such administrative power.Chapter 4 “The Basic Contents of the Administrative Power of Overseas Investment”summarily argues that the administrative power of overseas investment could be divided into five powers,including the power of capital management,tax collection and administration,antitrust review,foreign anti-corruption and corporate social responsibility supervision.Moreover,it also expounds the meanings,basic contents,international practices and legal significances of specific powers.Besides,this chapter points out that the power of capital management includes the power of capital control and foreign exchange management focusing on the project,size,destination and foreign exchange,overseas profits and assets transferred of overseas investment,and the power of tax collection and administration includes daily routine tax administration and anti-tax avoidance,and in response to thecomplexity of overseas investment activities,the state strengthens the practice of the power of antitrust review,anti-corruption and corporate social responsibility supervision and achieves the extraterritorial effects by the unilateralist measures.Chapter 5 “The Subjects of the Administrative Power of Overseas Investment”summarily argues that the subjects of the administrative power of overseas investment could be divided into the subjects of right and subjects of obligation.For one hand,it clarifies the types of the subjects of right,and emphasizes that the state enjoys the decision-making power of overseas investment administration,but should be limited by the international treaties,the basic principles of international law and good governance,and then discusses various executive subjects.For the other hand,this chapter studies the subjects of obligation of the administrative power of overseas investment,including natural person,legal person and other organizations.Chapter 6 “The Practice and Tendency of the Administrative Power of Overseas Investment” firstly describes systematically China's current legal system of the administrative power of overseas investment,and analyzes the problems of the legal system of capital management,tax administration,antitrust review,anti-corruption and corporate social responsibility supervision.Secondly,this chapter explains realistic basis and puts forward some basic principles and methods to complete China's legal system of the administrative power of overseas investment.It asserts that the legal system of the administrative power of overseas investment should follow the principles of rule of law,internationalization and sustainable development,and the changing of mode from “direct management” to “indirect management”,from “ex ante review” to “full control” and from “national management” to“global governance”.Finally,this chapter puts forward the specific paths to complete China's legal system of the administrative power of overseas investment.First of all,the improvement of overseas investment review legal system could be done through unifying the examination organization and improving the examined objects and contents.Next,the improvement of tax administration legal system should focus on the establishment of daily routine tax administration and anti-tax avoidance.Then,the improvement of antitrust review legal system should spare no efforts on the standard for declaration and review of concentration of business operators,and accordingly strengthen the severance of punishment.Lastly,the improvement of anti-corruption and corporate social responsibility legal system should reasonably regulate and guide overseas investment activities through the enhancementof legislation and related supervision mechanism.