On Legislative Adjustments Of Performance Requirements Prohibition Rules In International Investment

As a kind of regulatory measure made by host country to regulate and guide foreign investment, performance requirements caught national attention since its appearance, especially widely used in most developing countries. With the development of economic globalization and the growing demand of international investment liberalization, most developed countries thought performance requirement was a kind of mandatory interference to foreign investment activities, some international investment treaties began to set performance requirements prohibition rules. Discuss the legislation adjustment of performance requirements prohibition rules in foreign investment law has realistic significance to the economic development of our country. In the new situation of international investment, from a macro point of view, reasonable adjustment of performance requirements prohibition rules can bring opportunities for deepening the reform China’s enterprises, by “bringing in” and “going out” strategy to achieve China’s domestic industry development and upgrading mechanism; from the micro perspective, it is conducive to imported more high-end technology and more excellent talents from abroad, in order to provide rich human and material resources for the high-end industry in China.This paper uses literature research method to sort out the legislative regulation of performance requirements prohibition rules in international investment treaties, summarizes the legal evolution of performance requirements prohibition rules by longitudinal comparison method, and gives some suggestions to our country, using survey method to analysis the problems of prohibition rules of performance requirement in our country’s foreign investment law and international investment agreements, using the summary method to summarize the legislation adjustment of performance requirements prohibition rules.This paper intends to put forward some suggestions on the legislation adjustment of performance requirements prohibition rules, mainly by discussing the problem of formulating performance requirements prohibition rules exist in current legislation, and combine with the practice of performance requirements prohibition rules in international treaty and foreign country. The author believes that, for the domestic legislation, our country should base on the domestic conditions and the situation of economic development to formulate the performance requirements prohibition rules that in accord with WTO rules, while for those industries which related to the national economic lifeline and public security, some performance requirements are necessary; for the international legislation, when we sign investment agreement with different countries, we should fully understand the present situation of performance requirements prohibition rules in that country, and advocate the reciprocity principle with their rules. On the premise that it is not violate the obligation of international law, we can also make exception clause in investment treaty to retain some necessary performance requirements.