On Principle Of National Treatment And The Reconstruction Of Our Foreign Investment Law

Since the accession to the WTO, the fitting problem, between China's existing legal system and the WTO legal norms, has aroused many concerns in both theoretical and practical circles at home and abroad. The national treatment principle, as one of the essential principles and merits of WTO legal system, the specification and performance of which through our legislation and legal practice have easily captured public attentions worldwide. China's existing foreign investment legal system has many defects, not only in unreasonable structure, but also in content, which conflicts with the principle of national treatment. Therefore, to rebuild China's foreign investment legal system needs not only to adjust its structure, but also to supplement contents and inevitably to examine rules and provisions against the principle of national treatment. The purpose of this paper is, by introducing the WTO principle of national treatment and exceptional provisions, on the basis of analysis of China's existing foreign investment legal system, to expound some views on how to build a new foreign investment legal system, as well as how to make better use of the principle of national treatment and exceptions.This paper, by making specific analysis of the concept of the principle of national treatment and the scope of its application, holds that during the reconstruction process of our country's foreign investment legislation, we should carefully consider the characteristics of the principle itself, that is limitedness, reference, and reciprocity, apply national treatment principle in a very certain extension, rather than unconditional national treatment. Besides, we shall make better use of the advantages of exceptions and transitional period arrangement given by WTO to developing country members, seek for a foreign investment legal system which not only consists with WTO principles, but also best represents China's economic interests..This article is divided into three chapters, which starts from the problem, followed by analysis and finally ends up by solving of it. The first chapter is mainly on the concept of the national treatment principle, its characteristics, application scope, and exceptional provisions, giving a sound theoretical preparation for later reconstruction, and give a detailed analysis of the current situation and defects of our foreign investment legal system, pointing out the necessarily of reconstructing a new foreign investment legal system; The second chapter discusses in detail about forbidden investment measures in WTO main agreement dealing with international investment, compares with conflicting provisions in our foreign investment legal system, stressing the necessarily of re-examining these conflicting provisions. The third chapter intends to signify a few problems, which is of great significance to the accomplishment of reconstruction legislation, and through learning from the successful foreign investment legislation experience and drawing lessons of failure, tries to illustrate that China's foreign investment legislation must depend upon its own special domestic conditions, should not blindly meet the standards made by western developed countries. Either the overall cancellation of access restrictions towards foreign investors, or too fast opening up of domestic markets and industries, is not conducive to the nurturing of domestic infant industries nor the safe and stable operation of our national economy.