| This thesis studies the legal issues of overseas investment by CSOEs as the research topics while and takes the international investment legal system as the dimension.This thesis aims at the international investment from or related to the special investment subject of Chinese CSOEs and their overseas investment economic activities.Legal issues are discussed,and through the study of relevant cases and international investment legal practices,Chinese ideas and positions of theory and practice are suggested within a certain range.From the perspective of international legal studies,discussing the legal issues of overseas investment by CSOEs has important theoretical value and practical significance.First of all,the overseas investment of CSOEs has important strategic value and practical significance at the macroeconomic level in China.CSOEs have undertaken the main tasks of the Chinese economy's "Going Global" and "Belt and Road" construction.The host country's investment restrictions and review measures are gradually becoming stricter,and related practical issues need to be clarified in theory.Secondly,the thematic legal studies of CSOEs are not abundant in the existing domestic literature.A systematic and in-depth study from various perspectives of the international investment legal system is conducive to the two-way supplementation from the perspective of theoretical research.In addition,important legal reforms such as the current round of reforms of the CSOE system,international economic and trade negotiations,and international investment lawmaking processes all involve important topics of CSOEs' overseas investment.A comprehensive and detailed analysis of relevant issues is beneficial to China's handling of related issues.In the process,make reasonable judgments,form favorable positions,and use theoretical research to help the practice of international law.This thesis is based on a logical structure of total scores.In addition to the introduction and conclusions,this chapter is divided into four chapters: Chapter One begins with the clarification of issues related to the subject of foreign investment by CSOEs from the perspective of international investment law.The issue of international legality lays the theoretical foundation.Chapters Two to Four analyze the relevant legal issues from three aspects: domestic legal system,host country legal system,and international legal system.This article mainly adopts a variety of research methods such as system analysis,historical analysis,and empirical analysis.In the reform of CSOEs and the continuous expansion of the overseas investment stocks and flows of CSOEs,economic and trade unilateralism and anti-internationalism in some countries have risen.It is carried out in the background,combining many cases and current hot issues to conduct research and draw conclusions.The outline of each chapter is as follows:Chapter One,titled Research on the Overseas Investment Subjects of CSOEs,aims to clarify the basic definition of the research object of this article,as well as the special legal status of CSOEs.First,the concepts of international investment law and overseas investment law are discussed.International law and some economic theories are used to explain the basic definition of international investment,and then the scope of the definition is guided to international direct investment,which is the direct research scope defined in this article.It is pointed out that the fundamental difference between international direct investment and international indirect investment lies in whether the economic purpose of the investor lies in the control of the invested economic entity.At the same time,widely cited data reveals the megatrends of international direct investment,the megatrends of Chinese enterprises 'overseas investment,and the megatrends of CSOEs' overseas investment.This chapter discusses the legal subject status of CSOEs.First of all,the concept of state-owned enterprises is defined from the general concept.It is pointed out that the form of state-owned enterprises is common in all countries in the world,but the existence forms of state-owned enterprises under different economic systems and historical backgrounds are different.Legal status is not similar,and the purpose of SOEs participating in business activities is also different.This article mainly studies the CSOEs in the narrow sense,that is,the CSOEs where the SASAC fulfills the obligations of investors on behalf of the state and analyzes the reasons.At the same time,compared with local state-owned enterprises,this type of CSOE has a unified investor and a relatively high-level legal system,and is targeted for legal research.Judging from the current situation,CSOEs have undergone in-depth international transformation in the past ten years.This transformation originates from the increase in the overseas assets of CSOEs and on the other hand,it also causes disputes with CSOEs' overseas investments.Furthermore,this article further analyzes the status quo of overseas investment by CSOEs while points out and analyzes why the CSOEs can assume the role of "Going Global" vanguard of Chinese enterprises.The internal reason is the new type of Chinese economy and the competition of world economic development.Chapter Two discusses the domestic legal system of foreign investment by CSOEs and its reforms.It aims to study the special problems in the domestic legal system of CSOEs' overseas investment in conjunction with the reform of CSOEs and discuss the related issues of the legal reform of overseas investment by CSOEs in this round of CSOE reform.From the current situation,Chinese CSOEs can be divided into CSOEs that do not have the top-level structure of the organizational form required by the Company Law and CSOEs that have the top-level structure of the organizational form required by the Company Law.The latter can be further classified and has become the mainstream system.China's domestic legal system has formed a supervision system based on the Measures for the Supervision and Management of CSOEs' Overseas Investments,Implementation Measures for the Investigation of Investment Responsibilities of CSOEs(Trial)and their supporting systems,and has a certain investment protection mechanism.But its legal rank is not high.Judging from the overall impact of the reform of CSOEs on their overseas investments,there will be a certain restraining effect in the short term,but in the medium and long term,the overall investment of CSOEs' overseas investments will be profitable.To seize the opportunity of reform to realize the parallel reform of the legal system of overseas investment by CSOEs,we should learn from Japan,Singapore,and Germany and start from the perspective of decision-making and overseas investment protection.Chapter Three,The Legal System of the Host Country's Overseas Investment by CSOEs,mainly from the perspective of the judicial exemption of the CSOE in the host country of investment,the review of competition law in the domestic legal system of the host country of investment,and the issue of national security review.Host country legal supervision and investment measures,and discuss countermeasures.First,the judgment of whether a state's sovereign immunity status is given in international practice is to identify whether its specific behavior is an economic purpose behavior,that is,it should be interpreted rather than the subject.According to the conclusion of the United Nations Convention on Jurisdictional Immunities of States and Their Property,CSOEs are not exempted from the jurisdiction of other countries because of the nature of their state-owned assets when they engage in business transactions.In the CAO case,according to the economic behavior facts made by CAO's Singapore company,the physical issue of the dispute settlement is obviously unfavorable to CAO.Therefore,the defense in this case should first be jurisdiction from the perspective of litigation techniques.Right objection defense.China Aviation Oil(from the point of view of the case)apparently did not have sufficient basis to invoke its jurisdictional objection defense,so it proposed that it belongs to the "department" of the Chinese government because it is a CSOE,and then asserted that its Singapore company enjoyed national sovereignty Jurisdictional immunity.From this case,China's CSOEs do not differ from any other private enterprise in their specific economic behavior.Secondly,with regard to the review of competition law,competition law issues have been an important investment measure for foreign investors in the legal system of the investment host country in the main destination countries of overseas investment by Chinese enterprises(especially CSOEs).Admission phase and post-admission phase.The heuristics that M.6113 DSM/SINOCHEM/ JV case give us two basic characteristics that a CSOE's overseas investment entity should possess,namely profitseeking and independence.The main purpose of analyzing these two characteristics is to find guidance for CSOEs to obtain and realize the actual independent economic status.Profit-seeking is the fundamental reason for a CSOE to become an independent economic entity.Its core purpose should be to obtain economic benefits through business operations.This is also the key reason why enterprises are different from government departments.Independence mainly refers to whether the market entity has independent economic decision-making power.It should be argued that CSOEs declare centralized market share calculations independently,but under the current state-owned enterprise reform and large-scale integration background,there is still great uncertainty in maintaining independent market share calculations for CSOEs.Third,national security is mainly discussed within the scope of national sovereignty,and its related aspects should cover various security factors including economic security.Although the US CFIUS national security review system has certain restrictions on the investment of Chinese enterprises(especially Chinese CSOEs)outside the United States,the system itself is rule-based and is not a purely "political" investment restriction measures.Based on the analysis of the Sany case and the FIRRMA bill of the CFIUS modernization reform started in 2018 in the United States,this article believes that CSOEs should respond to national security reviews: First,strengthen the design of the main structure of investment entities and avoid the concerns of national security reviews in the early stages of the structure Factors exist.Second,select non-sensitive investment areas.Third,attach importance to pre-examination work,that is,to strengthen the early stage and communication.At the same time,at the national level,China should further strengthen the domestic legal system for national security review in order to obtain equal investment guarantee for CSOEs.Chapter Four,The International Legal System for the Overseas Investment of CSOEs.The purpose is to discuss the protection of overseas investment by CSOEs through theoretical and practical issues in the international legal system of international investment.Key issues related to investment protection have been included in the agenda,striving to achieve reasonable and effective protection of overseas investment by CSOEs with the international legal system.The article analyzes the development history and current situation of the international legal system of international investment,and points out that the international legal system of investment is the way to truly achieve international investment protection.In order to further clarify the theoretical issues of the legal protection of international investment,the article further explores the origin of the legal system of international investment protection.Its origins mainly include: First,international investment treaties and international investment practices,such as relevant documents made by the International Economic and Trade Organization or regional economic and trade organizations,are also important source supplements to the international investment protection legal system.The harmonizing role of the international legal system is an important theoretical cornerstone of this paper's claim that China actively participate in international lawmaking to solve the problem of the protection of overseas investment by CSOEs.This issue is based on the need for international investment reconciliation.The value of this issue is to confirm the proper role of the international legal system for international investment,that is,to prove its value.As an economic activity,international investment does not have political significance in itself.However,as the scale of international investment gradually increases,and international investment-related disputes continue to emerge,the above conclusions appear to be unrealistic.First,international investment has become the main cause of serious economic,trade,and even political and diplomatic disputes between powerful nations.At the same time,large-scale international investments between countries with strong and weak contrasts are often dominated by political factors.Second,in the friction caused by international investment,several basic characteristics can be summarized: that this type of investment comes from international business giants and uses non-industrialized countries and political turbulent countries as investment destinations.The business giant's investment exporting country holds Have or have close relations with the government and specific investment projects that touch the core interests of the host country.At this level,the overlap of overseas investment by CSOEs is extremely high.In other words,overseas investment by CSOEs is a key area that is likely to cause international investment friction.First,CSOEs are already an important force in the world economy.Second,the investment objectives of CSOEs are relatively scattered.Today,as the “Belt and Road” initiative continues to advance,the destinations of overseas investments by CSOEs will become increasingly diversified and penetrate deeper into countries and regions with relatively unstable economic and political situations.Third,CSOEs are Chinese state-owned enterprises,and the background of their own government relations need not be repeated.Finally,the investment fields of CSOEs,in addition to those involving the core interests of countries around the world,such as resources and energy,are also transforming into high-tech sensitive fields such as information and communication.Therefore,from the perspective of international investment reconciliation,the need for CSOEs to reconcile the international legal system is obvious.This thesis further analyzes the principle of reconciliation of the international legal system.Its fundamental purpose is to clarify the actuality of the working mechanism of the international investment legal system,that is,to prove its practical value.First of all,regarding the definition of law and international law,this thesis starts with a fundamental study of the core content of the rights and obligations of international law.Through a certain length of citations and logical analysis,it is pointed out that international law is law and the international legal system in the field of international investment is a law with a clear starting point and end point for the rights and obligations of all parties.Furthermore,we continue to discuss the principle of harmonization of the international legal system from the perspective of international investment dispute resolution.This article points out that complex international investment disputes cannot be resolved by relying only on the domestic legal system,especially in the current era when protectionism is prevailing in some countries.Finally,under the premise that the important role of bilateral investment agreements in international investment protection is confirmed,this thesis is launched from the perspective of CSOEs' overseas investment.In terms of clarifying the scope of application of bilateral investment agreements,although there have been more than 100 bilateral investment agreements signed by foreign countries,there is always controversy as to whether the Hong Kong Special Administrative Region and the Macau Special Administrative Region are applicable to the bilateral investment agreements signed by the Chinese central government.In practice,there have been rulings,but this article tends to argue that investment agreements signed in the name of the Chinese central government have implicitly excluded the application of the two special administrative regions.If it is desired to protect a large number of CSOEs' investment entities in Hong Kong through the situation of bilateral investment agreements,consideration should be given to the explicit inclusion of the two special administrative regions in the subsequent negotiations of bilateral investment agreements.Regarding the status of the investment subject of CSOEs,it should be a key issue in BIT negotiations.The research on the overseas investment of central SOEs has always been inseparable from its subject research and judgment issues.In bilateral investment agreements signed with foreign countries,state-owned enterprises(SOEs)are usually included.However,in the implementation of the specific international legal system,whether a CSOE has clear economic independence is an important factor in whether it can be finally identified as an economically independent economic entity.Its main solutions have been highlighted in the previous issue of CSOE reform.At the same time,from the perspective of international investment law,whether CSOEs have a high degree of transparency in economic behavior decision-making in the process of overseas investment has also become the key to identification.National treatment of overseas investment by CSOEs.This article points out that the national treatment issue itself has different levels.In the concept of general national treatment,we mainly emphasize on national treatment after admission or national treatment after admission.However,we must pay attention to different levels of national treatment on the issue of overseas investment by CSOEs.Is national treatment an issue of legal or practical? The former is undoubtedly due to the apparent compliance with bilateral investment agreements and other international law obligations,while the latter is substantive and substantially meets and fulfills the obligations of the host country's international law obligations.Furthermore,this article cites cases related to foreign investment in Indonesia to prove the impact of different levels of national treatment on foreign investors.In the field of national treatment,China should actively advocate that CSOEs enjoy comprehensive national treatment,and include special provisions in the BIT to avoid ambiguity.Finally,regarding the trend of competitive neutrality international lawmaking,although developed countries such as Australia and the United States have long had a legal definition of competitive neutrality,it does not apply(or is not conducive to)enjoying a fair legal system environment for CSOEs 'overseas investment.The law-making trend is also mainly aimed at limiting the potential unfair competitive advantages of state-owned enterprises in the domestic legal system.In order to take advantage of the harmonizing role of the international investment legal system and strive for an equal and free international investment environment for CSOEs,China should advocate the expansion of the concept of competitive neutrality and incorporate it into future Chinese investment international law making proposals.The conclusion section summarizes the full text viewpoint and summarizes the legal issues of overseas investment by CSOEs.It is believed that the reform of CSOEs should be accompanied by the domestic legal reform of overseas investment law.CSOEs must also actively respond to the legal governance of the host country and related investment measures.At the same time,China should take the opportunity of international lawmaking to realize the protection of overseas investment by CSOEs. |
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