Pre-establishment National Treatment Of International Investment Law

Whether National Treatment can applies only to the post-establishment stage after the investment access, or can be applied to pre-investment stage, this is a very important issue. Currently, the relevant treaty practices in free trade agreements already produced some situation about applying Pre-establishment National Treatment. Pre-establishment National Treatment makes foreign investors and their investments enjoy treatment no less favorable than domestic investors and their investments under similar circumstances. It aims to balance foreign investment in the treatment, to provide a fair and transparent competitive environment, to promote investment liberalization. As one of mode about taking the responsibility of the national treatment, negative list can provide special management measures’ reserve to the host country if it exists the situation that can’t apply national treatment on foreign investment’s access stage, and the host country can use it as means to balance the country’s economic sovereignty and opening up.With the development of Pre-establishment National Treatment, it has become a new trend in the field of development of international investment law. This paper describes the relevant practice of Pre-establishment National Treatment and negative list in free trade agreements, combines with the actual situation in the Shanghai Free Trade Zone, analyze problems of Pre-establishment National Treatment and negative list in Shanghai Free Trade Zone at the present stage, suggests that some measures like it must persist application of Pre-establishment National Treatment and negative list, reduce the scope of the negative list according to plan, clear and improve relevant laws and regulations, and build dispute settlement mechanism to negative list, in order to further improving the implementation of Pre-establishment National Treatment in China.The experiment on Pre-establishment National Treatment and negative list in free trade area is a major breakthrough in the management of foreign investment of China, it is the first testing and tryout to China getting into negotiations about investment agreements on the basis of foreign investment access mode in the future. It conforms to the development trend of international investment law, will help China to expand opening up and deepen domestic reforms, will promote the process of investment liberalization in China.