The Problem And Coping Research On The National Security Review Of Our State-owned Enterprises ’investment In The United States

In 2018,the United States revised its national security review legislation to carry out the strict review of the merger and acquisition(hereinafter M&A)of state-owned enterprises(hereinafter SOEs)to the end,And maked it more targeted--to China.This also corresponds to the trend that the investment flow of our SOEs to the United States drops sharply and becomes more and more intense in recent years.The rapid development of our country and the large scale and proportion of SOEs’ investment to the US have caused great concern in the US.The US government considers the investment of Chinese SOEs to be non-commercial investment with the government’s strategic purpose,and it is also highly competitive because of massive government subsidies.Therefore American strongly suppressed the investment of our SOEs.Already,there have big M & A transactions been affected,and leading to a sharp drop in Chinese direct investment flows to the US after 2017.Just the cases that M & A from China that have been rejected or restricted by the Committee on Foreign Investment(hereinafter CFIUS)come to see,The vast majority of them are state-owned enterprises or large private companies with perceived government or military ties as part of the deal.Theoretically,there is nothing wrong with changing laws based on rapid economic development,But the us national security review of M&A by our SOEs should not be discriminatory.In practice,CFIUS has often appeared: Violation of due process without informing specific review information,Expanding of the scope of identification of our SOEs,Hindering the investment of SOEs by threatening national security and other abuse of foreign capital’s right to review national security.There are some reasons why CFIUS is unusually rigorous in its scrutiny of our SOEs.The first is the great rivalry between China and the US,Specifically,the rapid development of China’s economy makes American investment protection politicized.The objective sensitivity of the us national security review system and the excessive subsidies given to SOEs by the Chinese government.Internal aspect,our SOEs have mostly acquired sensitive areas such as energy,resources and high-tech,which has hidden dangers for their investment in the United States.Of course,the opaque governance structure of our state-owned enterprises and investment impulse are also unavoidable reasons.In order to solve this dilemma and make our SOEs better cope with the us national security review,and prepare for the current US moving to formulate new international economic and trade rules,Need to respond proactively from legal perspective.At the national level,Firstly,we must make a plan to restart the negotiation of the China-US bilateral investment agreement(hereinafter BIT),raising China’s appeal in the negotiation of the BIT between China and the US in order to regulate the conduct of national security reviews.If involving new subsidy rules,it is necessary to strive for the application of transitional period and subsidy exception clauses.Secondly,China should continue to regulate government subsidies,improve the review system for fair competition and strengthen the guidance and guarantee mechanism for overseas investment.At the corporate level,our SOEs should seek guidance from professional organizations and take the initiative to submit review to the United States before going to the United States,Pay attention to the methods of high-tech mergers and acquisitions,In addition to seeking the support of the US Congress and active protection of rights,we must also focus on improving our corporate governance structure to improve transparency.