| In the age of economic globalization,free investment is the main theme.The signing of various investment agreements and regional trade agreements had unblocked investment channels between countries.At that time,the restriction of national security review of foreign investment was not so obvious.Under the current trend of antiglobalization,some countries have begun to show obvious protectionist tendencies in their economic laws and policies,focusing on national security at the other end of the spectrum instead of free investment.In recent years,the United States has adopted several measures to continuously strengthen regulations on foreign investment through national security review.Although investment from China accounted for really little ratio of the total surged into the United States,China’s proportion was only 3.6% at its peak in 2016 and has been declining since 2017,but the review of Chinese foreign investment is gradually tightening.According to the CFIUS annual report,from 2012 to 2018,China ranked first in the number of reviews conducted by CFIUS for 7 consecutive years.From 2016 to 2018,the agency reviewed a total of 638 transactions in 48 economies,of which China accounted for 169 transactions,far exceeding the second-ranked Canada’s 73 transactions.The " China’s Position and Facts on Sino-US Economic and Trade Frictions" elaborated on the fact that the U.S.abused using the review to hinder the normal investment activities of Chinese companies in the territory of the United States.The trend of investment protectionism needs to be resolved urgently.On the other hand,China passed the "Foreign Investment Law of the People’s Republic of China" in 2019 and proposed in Article 35 to establish a national security review system for foreign investment.At the end of 2020,the "Measures for the National Security Review of Foreign Investment" was promulgated to further clarify the responsible agency,review application scope,review procedures,and supervision and implementation of review results.It promoted the implementation of China’s national security reviews.The current "Measures for the National Security Review of Foreign Investment" serves as the main basis for how to conduct the national security review of foreign investment.There are 23 articles in the full text,which constitute a basic framework for China’s national security review of foreign investment.However,the responsible agency still has great discretion over the scope of the review and the judgment criteria of the review decision,which is not conducive to the predictability of foreign investors.In order to form an international and legalized business environment,China’s national security review system still needs to be supplemented and improved by subsequent implementation rules.This article mainly discusses the certainty and illegality of "covered transactions"in the security reviews of the United States.Before the US promulgated the Foreign Investment Risk Review Modernization Act of 2018(FIRRMA)and the two final implementation rules in 2020," There is a certainty disputes over “covered transactions”.After the release of FIRRMA and its detailed rules,has the certainty of“covered transactions” improved compared with before? Which areas have gained certainty? How to get these areas promoted? Will the changes in the areas regulated by"covered transactions" and the provisions on "excepted investors" conflict with investment agreements signed by the United States? Can the "security exception" clause exempt the illegality of this conflict? What lessons can China learn from this?The first chapter summarizes the “covered transactions” in the U.S.national security review.First,it defines the concept of “covered transactions”.Second,it sorts out its legislative evolution and clarifies that “covered transactions” have a trend of expansion.Third,it analyses the impact of U.S.national security on the "covered transaction".The second chapter focuses on the issue of the certainty of "covered transactions".It clarifies that there are disputes about the certainty of "covered transactions" before FIRRMA and its rules are promulgated.Secondly,after the promulgation of the new law and implementation rules,it analyzes specific manifestations of the "covered transactions" in which certainty improves in specific areas.Thirdly,it sorts out other measures FIRRMA has taken to improve the certainty of "covered transactions".The third chapter discusses the illegality of "covered transactions",focusing on whether the "security exception" clause can completely exempt the legal conflicts between the changes in "covered transactions" in the US national security review and the investment agreements signed before? First,it clarifies the relationship between the national security review and the "security exception" clause in the investment agreement.It conducts a text analysis of the "security exception" clause under the investment chapters of USMCA and NAFTA and discusses the application of the "security exception" in the bilateral investment agreement.Then it turns to judicial practice and analyzes the arbitration tribunal’s interpretation of the "security exception" clause in the U.S.investment agreement and the basis for its discretion.Finally,it demonstrates that the expansion of the field of "covered transactions" and the provisions of "exceptional investors" in the review may violate the investment agreements.In the last chapter,based on the analysis of the certainty and illegality of "covered transactions" in the review in the previous chapter,it puts forward feasible suggestions on the development of China’s review system from the perspective of domestic legislation and international coordination.It points out that China’s current review system should focus on domestic legislation and clarify the relationship between the negative list for the access of foreign investment and the review system.It also suggests that China make detailed regulations on important areas,introduce guiding examples,and enhance the transparency of the national security review legislation.As to international coordination,China needs to ensure that the investment agreement does not conflict with the domestic security review system,and actively promote the four principles of the OECD "Guide" in order to strive for the unified understanding of the national security review of foreign investment among all countries. |
