Research On Domestic Judicial Review Of National Security Review Decisions To Foreign Investment

With the in-depth development of globalization,the free flow of capital continues to increase,and the development of international investment activities is increasingly active.Before granting foreign capital to enter the domestic market,each country will conduct a rigorous comprehensive review of foreign investment to determine whether it has hidden dangers that endanger its national security.This is the foreign investment national security review system.As the number of cases of foreign investment national security review in various countries increases,it hinders the free flow of international capital.How to ensure that foreign investment national security review does not become a disguised investment protectionist measure has aroused widespread concern in the international community.In this context,the issue of supervision of foreign investment national security review comes into being.This article focuses on the issue of domestic judicial review,that is,the issue of domestic judicial review of national security review decisions to foreign investment.The first part of this article introduces the foreign investment national security review system,points out that the essence of domestic judicial review of national security review decisions to foreign investment is the supervision of administrative power by judicial power,analyzes the origin of accountability of foreign investment national security review decisions,and then briefly introduces the legislative status of various countries regarding the possibility of judicial review of foreign investment national security review decisions.Most countries such as the United States,France,and Germany have stipulated domestic judicial review of foreign investment national security review decisions.The second part of this article introduces the legislation of different countries in the national security review of foreign investment,and focuses on the legislative provisions related to domestic judicial review.Based on whether the domestic law clearly stipulates the domestic judicial review of foreign investment national security review decisions,it introduces the US legislative model of "not subject to judicial review" and the legislative models of Germany and France that can conduct judicial review.It focuses on the domestic judicial review provisions in the national security review legislation for foreign investment in different countries.The third part of this article mainly takes “Ralls Corp.vs.U.S.Government”Case as an example for empirical research,focusing on Ralls’ s claims on due process rights.Ralls’ property rights should be protected by due process.It analyzes the obstacles faced by the judicial review under the US legal system,including the statutory limitations of judicial power,the principle of exclusion of political issues,etc.,and points out that the core dispute of the judicial supervision power is actually about the balance of investor rights and national security.The fourth part of this paper summarizes the practical value of domestic judicial review of foreign investment national security review decisions,including the protection of investor rights and procedural justice,and then analyzes the effect of domestic judicial review in balancing investor rights,maintaining procedural justice,and ensuring national security.Although there are various limitations to domestic judicial review of foreign investment national security review decisions,it can have a positive effect on investors and investment host countries to a certain extent.The fifth part of this paper sorts out China’s legislation on the national security review of foreign investment,and interprets Article 35 of the Foreign Investment Law.Combined with the legislative experience of foreign countries in the aspect of national security review of foreign investment and the judicial practice of foreign countries,this paper analyzes the practical needs of China’s judicial power to supervise the national security review of foreign investment.Under the policy guidance of encouraging foreign investment,exploring the balance between protecting China’s national security,ensuring procedural justice,and safeguarding investors’ rights.