| China is an official member of WTO now, which will make it possi-ble for China to attract more foreign direct investment, and create more opportunities for Chinese enterprises to make overseas investments. The entry into WTO will require not only China' s better foreign investment attracting legislation, but also overseas legislation legislation, especially an overseas investment insurance scheme. However, no such scheme has been established in china and profound academic research in this field has also been found in deficiency. Therefore, this paper aims at providing some thinking on how to construct an overseas investment insurance scheme of China.This paper consists of six sections.The first is an introduction. At the beginning of this section, it ex-plains the historical development of the overseas investment insurance scheme and analyzes its legal characteristics, referring the scheme as a state guarantee or government guarantee in nature. Then it studies the practical basis for China to establish an overseas investment insurance scheme and states that China has not only the economic and practical ba-sis but also the legislative basis of establishing such a scheme and that an overseas investment insurance scheme is the intrinsic requirement of the current situations of China' s overseas investment development and thenecessity of the circumstances that China stands in. At last, on the basisof the above analysis and with a consideration of China' s practical situa-tions , it sets forth some basic principles that China should adopt in estab-lishing its overseas investment insurance scheme.The second section deals with the subject matter of the overseas in-vestment insurance scheme. It begins with the legislature concerning o-verseas investment insurance bodies, and focuses on the matter of setting up China' s overseas investment insurance body, proposing that China should adopt the "German style" legislation, ie. the style of separation of approval body and business body. It also expounds whether people's In-surance Company of China (PICC) is an eligible insurer in overseas in-vestment insurance business and whether Chinese natural persons and pri-vate enterprises are eligible investors.The third section makes a study of the eligible investments in Chi-na' s overseas investment insurance scheme. In view of the content of o-verseas invetment, Investments are eligible for a guarantee if the eeo-nomic soundness of the investment and it contribution to the develop-ment of the host country and it should be in the interests of the investor' s home country. In view of the types of overseas investments, eligible investments should include equity investment and non - equity direct in-vestment. In view of the host country, Investments are eligible for a guarantee if exists a bilateral investment protection treaty with China or if exists the same international conventions of investment protection, which together with China join. Furthermore, an insurance is available for investments in new ventures.The fourth section studies covered risks in China's overseas invest-ment insurance scheme. On principle, the risks which are eligible to be covered by a guarantee are only three main types of political risks: ex-propriation, inconvertibility, war and civil disturbance. As far as busi-ness interruption risks and moratorium risks are concerned, they may be sketched out in the scheme. But the risk of host goverment breach of contract should be excluded.The fif t section explains in brief the insurance procedures, insurance rate, insurance period and adjustment, etc.The sixth section provides some legal thinking on perfecting China' s overseas investment insurance scheme, At the domestic law level, Chi-na needs to formulate its Overseas Investment Insurance Act and should establish bilateral overseas investment insurance scheme. At the interna-tional - law level, China should make full use of the legal protection for overseas investment provided by bilateral investment treaties and the two... |
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