Research On Investor Relief In National Security Review System

Foreign Investment Law of the People ’s Republic of China was adopted on March15,2019 and implemented on January 1,2020.Among them,Article 35 stipulates that“ the state establishes a security review system for foreign investment to conduct security review of foreign investment that affects or may affect national security ”.This article formally incorporates the national security review system into legislation to ensure national security.At the same time,paragraph 2 of the article stipulates that ’the security review decision made in accordance with the law is the final decision ’ and’Regulations on the Implementation of Foreign Investment Law’ does not elaborate on the provision.It can be seen that according to the existing laws and regulations,foreign investors in the process of normal investment in our country once the review body to make a negative review decision,it means that can not be through administrative review,administrative litigation such legal means of benefit relief.No relief means no rights.How to protect the relief rights of foreign investors has become an important problem to be solved.Specifically,excluding the introduction,the main part of this paper will be discussed from the following four aspects :The first part is an overview of national security review and investor relief theory.Firstly,the background and development trend of the national security review system,and the value and consideration factors of the national security review system with foreign capital are expounded respectively.Secondly,it mainly discusses the rights of foreign investors that may be damaged in the implementation of the national security review system,and analyzes the necessity of relief for the legitimate rights and interests of foreign investors.To clarify the significance of investor relief mechanism.The second part is the feasibility analysis of investor relief in national security review.The feasibility of judicial remedies at the domestic level of the host country and the feasibility of remedies at the international treaty level.First of all,at the level of international treaties,this paper introduces the investor relief path in the ICSID mechanism and the investor relief feasibility and existing relief obstacles in the WTO dispute settlement mechanism.Secondly,from the host country judicial level to explore the feasibility of investor relief path.This paper mainly expounds the necessity of judicial relief in the host country and the three legislative modes of domestic judicial review(i.e.,entity litigable mode,procedural litigable mode and non-litigable mode)currently determined by the national security review.Finally,it is concluded that there are still great obstacles to the realization of foreign investors ’ rights and interests relief from the international level.At present,it is not realistic and feasible,and the domestic judicial relief of the host country is feasible.The third part is the analysis of the current situation and problems of investor relief in China ’ s national security review system.Firstly,it discusses the special necessity,legal origin and the latest development of establishing the national security review system.Secondly,this paper sorts out the existing relief paths of foreign investors ’ rights and interests in China ’s current national security review system,which are the ’ investor complaint mechanism ’ as an advance remedy and the ’ written commitment ’ mechanism as an interim remedy.This paper focuses on the role of both and its lack of relief efforts.Finally,combined with the extraterritorial development trend of investor relief system and China ’s current foreign investment legal system,this paper puts forward the problems existing in the investor relief mechanism under China ’s current national security review system : the lack of domestic judicial relief channels and the obstacles in seeking relief channels at the level of international treaties.The fourth part is the author ’ s recommendations to improve China ’ s national security review system investment relief mechanism.First of all,take the legislative way to give foreign investors the right to judicial relief.Secondly,the establishment of national security review legislative oversight mechanisms.Through the form of legislative supervision,the national security review and decision-making subjects are supervised,so as to ensure the standardization and balance of the national security review system and the legal system of foreign investment.