The Development And Revelation Of American National Security Review System

With the deepening of economic globalization and multipolar world,the economies and links between the countries of the world are becoming more and more close,on the one hand,it has promoted the development of world economy and intensified international competition,increased international speculation and international risks.How can national security be unaffected when the economy benefits from foreign investment? This has always been a problem for open economies.As a tool to solve this problem,the National security review system of foreign investment has been changing and developing with the world economic pattern and national conditions.The full text is divided into four chapters.The balance between the opening of foreign capital and national security is the key point of the full text.And the article takes the development of American National Security Review System as the line.The author aims to provide ideas for perfecting the review system of foreign mergers and acquisitions by analyzing the “meaning” of the system of the legislative reform of the national security Review system,as well as combining the “shape” of the National Security Review system in the United States.The first chapter introduces CFIUS's review of foreign investment.The data source is the annual report of the CFIUS.Data analysis revealed a growing trend inthe number of transactions entering the investigation,notification withdrawal or mitigation agreements.The extension of the review period and the increase in the volume of substantive review cases mean that the United States has become more stringent in its control over foreign investment through CFIUS and is increasingly sensitive to the definition of “key technologies” and “national security”.But in fact,the CFIUS review did not affect the heat of investment in the US: the number of censored transactions increased by more than 20% in 2016,and the 2017 review transaction increased to about 250,partly reflecting a sharp increase in the trading base of investment in the US.And the data that the Cfius rejected between 2009 and2017 was less than one-tenth per cent of the transactions under the jurisdiction.All of these reflect that Cfius' s regulation of foreign investment is not restricted and excluded,but seeks the dynamic balance of investment openness and national security.The second chapter introduces the concept change of American national security Review System.The U.S.National security Review system has undergone a century of development,from the original national security to the current open investment and national security.The concept embodied in different stages of the security system is based on its specific situation.and the author will embody it by following several landmark bills: First,the Exon-Florio amendment,it marks the establishment of the U.S.National Security Review System.The Exon-Florio amendment was born to protect national security,when the United States began to realize the impact of foreign mergers and acquisitions on the domestic,the United States in the maintenance of open investment policy under the need for a law to limit the frenzy of foreign mergers and acquisitions to safeguard U.S.defense security.The second is the Byrd Amendment,which expands the scope of the review.The Byrd Amendment puts any enterprise with a state background in the scope of the national security Review,making the security review system of “nationality factor” more political.However,the Byrd Amendment does not change the international security review system of the United States single national Defence Security concept.Third,the National Security Strategy report,the United States of America has noted in the 1990 s that nationalsecurity should not only refer to national defence security,but also economic security.The National Security Strategy report first put “economic security” formally into the U.S.official documents,the U.S.national security concept has changed from a single national defense security to national security and economic security of the security concept.Fourth,the Foreign investment and National Security Review Act,which embodies the balance between investment opening and national security,marks the beginning of the National security Review system from the original national security to the new stage.Finally,the author simply introduced the United States and China's Bain capital mergers and acquisitions 3Com case to illustrate that the United States in the foreign mergers and acquisitions review practice has put national defense security in the first place,the United States to pursue the balance of national defense security as an absolute prerequisite.The third chapter introduces the development of American National Security Review System.This paper mainly introduces foreign investment and national Security Review law,merger and acquisition of foreigners,takeover as well as takeover regulations: final provisions after the introduction of foreign mergers and acquisitions review subjects,review procedures,review objects and review standards changes,as well as the latest legislative trend of U.S.national security Review.On the subject of the review,the lead department of CFIUS was added to strengthen congressional oversight.At the same time,the balance of CFIUS's institutional set-up is characteristic of the United States.On the subject,the definition of “covered transaction” and “non-covered transaction” by the positive enumeration,which retained greater flexibility,and whether it was a jurisdictional transaction was still a subjective judgment of the CFIUS while it's more specific than before.In the review of standards,the "national security" is still not clearly defined,using a broad definition,at the same time,the author of “National Security” in the “Defense security”and “economic security” of the trade-off is further explained.In the review process,the author through the flow chart reflects the changes in the CFIUS review process,mainly including the legal form of a clear declaration,the consultation process before the notification,reduce the entry of jurisdictional transactions to the threshold ofinvestigation procedures,the new review procedures and the granting of CFIUS right to punish these four aspects.In the last section,the author briefly introduces the latest proposed two bills in the United States—the 2017 Foreign Investment Risk Review Modernization Act and the 2017 U.S.Foreign Investment Review Act,which further expands the scope of the review,optimizes the vetting procedures and strictly examines the standards.The 2017 Foreign Investment Risk Review Modernization Act added a concept of “Countries of particular concern”,listing countries that pose a clear threat to the United States,requiring rigorous scrutiny of transactions from "Countries of particular concern".The last chapter of the thesis,the fourth chapter,introduces the revelation of American National security Review system to our country.The author first emphasizes the basic spirit of designing the National Security Review System: one is to adhere to the principle of balance based on the premise of national defense security.The objective of the review system of foreign mergers and acquisitions is only to safeguard national security interests,not to affect the state's open attitude towards foreign capital and to attract foreign investment actively,and the balance principle should be always followed in the system design.The second is to insist on the operation and flexibility of system design.Because the security review is a law-shaped political problem,the operability and flexibility of its design are mainly embodied in the legal path of National security Review: First,the review procedure should be fully legal.The openness,clarity and efficiency of the review process should be ensured,and the key to the operational nature of the national security Review System was the review process.The second is the limited legal review of standards.The abstraction and fuzziness of the examination standards are decided by the political core of national security,and the author thinks that our country can refer to the American practice in the process of setting up the examination standards,that is,to make positive and negative enumeration,and to maintain the openness of censorship standards to deal with the unknown national security threats.Subsequently,the author briefly introduced the status of China's national security Review system.The law of the People's Republic of China on Foreign investment(draft)aims atperfecting the deficiencies,the main problems that remain and the suggestions for improvement.On the whole,the process of the reform of national security review system is not an overnight one,but a process of pursuing dynamic equilibrium.In the construction of national security review system,we should grasp the “meaning” of the National Security Review system,and based on the reality of foreign capital in China,we can create a national security review system with Chinese characteristics and accord with China's national conditions.