| The legal system of overseas investment is a reflection of interest demand based on state identity.One state’s identity in international investment law plays an intrinsic rational guiding role in the pattern and rule selection of overseas investment law.The transformation of a state’s investment identity would inevitably promote the sublation of legal protection concept and system of overseas investment.China has transformed from a major investment-attracting country to a major two-way investment country.It has also become a pivotal emerging economy in progress.China’s externalization shift of investment identity has raised the demand for protecting its overseas investment interests,and also led to the appeal for reshaping the protection system of overseas investment law.This paper starts from the relationship between state identity in international investment law and legal protection of overseas investment.It first explains the reality performance and value orientation of China’s transformation in international investment identity,and then reflects the defects of the existing system from four major perspectives,namely macroscopic model,substantive rule design,rule of conflict of laws and remodeling of dispute settlement mechanism.With empirical research approaches and lateral vision of comparative methods,it explores the prospects,objectives and paths of the protection system of China’s overseas investment law,and proposes targeted suggestions for improvement.State identity in international investment law is the benchmark for anchoring national interests and guiding overseas investment legislation.If measured by realistic dimension,state identity’s transformation appears as and attributes to the replacement of international investment pattern and if by logical dimension,it attributes to the growth and decline of national strength and the switching of national investment interests.The transformation of state identity has a radiation effect on the evolution of overseas investment protection,which has turned the "North-South Confrontation" between capital-exporting countries and capital-importing countries into more cooperation and coordination.The sovereign rigidity of the host countries has also been gradually infiltrated by the concept of investment freedom.Strong protection modes such as politics,diplomacy and even military are giving way to rules and laws,and the legal protection of overseas investment has become a common practice.Compared with diplomatic protection,legal protection has the advantages of low cost,procedural simplicity and sufficient basis in safeguarding overseas investment interests.The multiple developments and forms of legal protection,including namely friendship commerce and navigation treaties in the colonial period,domestic laws of overseas investment powers,bilateral investment treaties,and multilateral investment treaties adopted and experienced by major overseas investment powers,not only demonstrate the logic of interaction between the transformation of state identity and legal protection,but also highlight the urgency of improving China’s legal protection system of overseas investment.The transformation of China’s investment identity is the internal motivation and rational compliance for improving and adapting legal protection system of overseas investment.Along with the leap-forward development of foreign investment,China has gradually realized three major transformations: from a capital-importing country to a two-way investment country,from a regional selective investment country to a global and widely-participating investment country and from “an adapter to international investment rules” to “a rule shaper and leader”.In calling for the philosophy reshaping of China’s international investment law,we should firstly adapt to the internal rationality of the balance between the sovereignty of host countries and the interests of investors,appropriately offer preferential policies to safeguard the rights of overseas investors.Then we should also plan and design from a macro level,through reflecting the trend of legal globalization and the convergence tendency of international investment law,contributing to the diplomatic vision of building a community of shared future for mankind and building a new type of international relations,contributing to the grand blueprint of building the Belt & Road,reflecting the development needs of overseas investment shifting from participating in the value chain to leading the production chain and international production capacity cooperation,in particular adapting to the urgent safeguarding situation for overseas investment in high-tech industries.Finally,it is necessary to participate in the design of international investment rules with a positive attitude and initiative,so as to safeguard China’s sovereignty,security and development interests.It is the first priority of the improvement of China’s overseas investment law to select the “most appropriate” reference to improve the rule of law by model comparison and then to establish the overall structure of overseas investment legal protection.In terms of the international investment status in the economic sense,Nowadays China and the United States are positioned to play the most similar role.The US model has provided enlightenment of priority to China,a two-way investment power as the US in many aspects: from domestic laws to international laws,from bilateral law to multilateral law,from the function of “Dispute Resolution” to “Competition Dominance”,from the concept of “Private Rights First” to “Public-Private Balance” and from the value ranking of investment dominance to Humanization priority.France,Britain,Germany and European Union also have reference value in the rule of law regarding overseas investment service and safeguard.However,their status in international investment and the way of balancing domestic and foreign investment laws are quite different from China’s,so it is difficult for the Europe to play a fundamentally guiding role in improving the legal protection of China’s overseas investment.Starting from the basis of comparative studies at home and abroad,considering the new interests distribution of and safeguarding needs for the overseas investment as a major country of two-way investment,especially in foreign investment,and taking the system innovation and breakthrough of “Foreign Investment Law,” China should set an ideal model under dynamic state with hierarchies and foresight,and focuses for overseas investment legal system,and find a correct positioning and balance point in the investment offset between investment liberalization and moderate supervision.Under the premise of properly safeguarding the sovereignty rigidity of our own country,China should respect more the autonomy of arbitration and pursue the substantive justice for coordinating the conflicts between investors and host countries in the global perspective.The legal protection of overseas investment begins with model construction,and ends with rule design,of which the orientation of substantive law rules determining the overseas investor’s right and obligation is particularly important.China’s transformation in investment identity requires re-examining international investment treatment issue,making it more clarified and specific on fair and equitable treatment,including Most-Favored-Nation Treatment(MFNT)clauses in the external treaty negotiations,and appropriately restricting its expanded interpretation.While implementing the system of “Pre-Establishment National Treatment(PENT)plus a negative list” in “Foreign Investment Law,” China should constantly strengthen national security review system,set up the clear exclusion articles and skillfully avoid the convergence of MFN treatment and PENT.On the issues of expropriation and nationalization,we should jump out of “Hull Formula” and “Calvo Doctrine”,the traditional black-or-white mindsets,and shift to design with the patterns of balance between domestic and foreign capital,market priority and comprehensive openness.We should define the limits of indirect expropriation and develop compensation standard guided by “Proper Law Theory” and the principle of proportionality,and seek the balance between the public interests of the host country and the interests of investors in property rights by combining qualitative and quantitative research.In dealing with new-type clauses of international investment like environmental protection,labor,restrictive measures,we should understand the interactive logic of politics,law,and morality,select rules in the competition and cooperation between idealism and realism,and properly grasp the rhythm and scale of legislation.Seeking for and determining applicable law is the basis for resolving overseas investment disputes.State investment identity plays a rational role in guiding the application of law.To clarify the improvement path for investment law application system,we should examine the evolution of international investment applicable law from the comparative theoretical perspective to analysis the relationship between economic globalization and legal convergence,and clarify the normative innovation and function lag of Chinese legal system in response to the transformation of state investment identity with the empirical research approach.China’s legal application system of overseas investment has problems such as imbalance between quantity and quality,paying more attention to internality than to externality,and relatively conservative positions,which lag behind the expansion of foreign interests and transformation of state roles.Based on the new trend of applicable law of international investment in legal source,application routes,procedural rules,and etc.,China should focus on its national identity transformation,its own interest shifts and institutional powers,and coordinate the relationship between foresight and comfort level,as well as the relationship between internationalization and localization,to upgrade and reshape the application system of overseas investment law.We should adjust the convergence relationship between domestic and international laws,bilateral and multilateral laws,subjective and objective theory models,and substantive and procedural law,explore the possibility of formulating overseas investment law on the basis of promulgating foreign investment law,appropriately incline to international law sources,reduce conflict of laws by pushing for multilateral investment substantive regulations,improve the percentage of subjective elements in law application process,positively influence and participate in the rule formulation and implementation,and properly balance legal safeguard requirements of two-way investment.The final goal is to provide overseas investors with an effective guidance to find the applicable law and gradually enhance the leading power of regional rules through BRI and other cooperation mechanisms.Dispute settlement mechanism is the core content of the legal protection of overseas investment,and also the final reliance for overseas investors to safeguard their rights.Under the background of national identity transformation,China should improve the effectiveness of overseas investment insurance system through orderly conclusion of bilateral investment treaties,introduction of market competition mechanism,and promotion of model transformation to reduce investors’ political risks in the manner of transfer and subrogation.State investment identity plays an internal guiding role in overseas investment dispute settlement mechanism.The “public-private integration” characteristics of state investment identity externalizes into a “one body,two wings” dispute settlement mechanism system.The “flattening” trend of international investment relations leads to the “depoliticization” trend of dispute settlement.We need to understand the internal logic of state investment identity and overseas investment dispute settlement and the shortcomings of China’s realistic system,appropriately shift the focus of rule design to overseas investment safeguard,adjust and update the system of bilateral and multilateral investment treaties especially by playing the guiding role of China-US BIT negotiations.While establishing the main channel status of international investment arbitration in dispute settlement mechanisms,we should make up for its shortcomings through active intervention,external correction and economic diplomacy,gradually explore the possibility of establishing “Belt and Road Investment Dispute Settlement Center” on the successful practice of B&R,attach importance to the role of consultation and mediation,focus on building a model of international investment dispute settlement with Chinese characteristics,continuously strengthen the legal protection of overseas investment,and constantly enhance China’s rule-making power and international discourse right in global governance. |
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