Foreign National Treatment Problem - On The Legislative Orientation

As a very important principle to promote international investments, national treatment is perhaps the most favorable one to foreign investments. People have different ideas on the definition, object and the scope of application of this principle. In China, there is a developing attitude to it. Up to now, there is not a consentaneous conclusion on this issue. In practice, foreign investors and investments have been given a super national treatment in China. Meanwhile, China has been criticized for its limitations on foreign investors and investments. Therefore, by analyzing the definition, object and the scope of application of this principle, the author wants to get a full understanding on and develops a proper attitude to this principle.This dissertation consists of four chapters.In the first chapter, the author does jurisprudence and economic analysis on the appearance and the formation of national treatment. The author thinks its jurisprudence basis of formation is equality, liberty and state sovereignty principle. Meanwhile national treatment results from the process of international investment competition and is based on market economy.Chapter two reviews the different definitions of national treatment and its characteristics. The existing international investment agreements define national treatment mainly in two ways. One way requires a strict equal treatment between foreign investors and the home ones. The other one offers more favorable treatment to foreign investors. However, these two definitions are identical in effect because even the host country has adopted the former model, it does not exclude that country to grant more favorable treatment to foreign investors and investments based on its sovereignty.National treatment has three characteristics. The first one is that it is not an obligation in the general international law, so the host country could accept it or deny it. The second one is that it only applies to the field of international investment. The thirdone lies in that it requires non-discrimination to foreign investors and investments, and permits the existence of de jure discrimination, but refuses the de facto one.The third chapter analyzes the scope of application of national treatment in international investment which is to make clearer its beneficiary subjects and objects. After careful study, the author found that certain exceptions always form part of the national treatment principle, which serve to protect certain national industries in host country.Chapter four points out the proper legislation selection which China should make on the issue of national treatment for the investments and investors. This part is the keynote of this article. Most scholars take the view that China should not accept the national treatment because China has not established a mature market economy and its most national enterprises are in a weaker position in comparison to foreign investors, especially to the transnational corporations. However, the author of this article thinks that it is the time for China to adopt this principle and China should adopt it. The author gives four reasons on this idea. The author also thinks that it is not enough for China to only accept this principle. In order that this principle could be enforced properly, China has to come over two problems, one is that different national enterprises have been given different treatments, the other is the so-called super national treatment. At last, the author gives some suggestions on the implementation of national treatment, which involve the hybrid of "positive list" and "negative list" and the establishment or modification of some internal laws.This article has a few innovations. The first one is that the author extends the principle of non-discrimination to national investors. As we know, the principle of non-discrimination consists of two main aspects, national treatment and most-favored-treatment. But a different treatment between national investors will be a violation to the principle of equality, and will cause dam...