Enlightenment Of The National Treatment Principle To China’s Legislation Of Foreign Investment In AI Sectors

All countries have taken the development of Artificial Intelligence(“AI”)as an important initiative in grasping the next round of technological revolution.China has also attracted a large number of foreign investors to invest in AI.However,there is still a lack of superior legislation specifically addresses foreign investment in the field of AI at present.In recent years,the European Union and many of its member states have strengthened their legislation of foreign investment in AI,and some of them have aroused the suspicion of violating the Principle of National Treatment.Therefore,it is extremely urgent to study legislation on foreign investment in AI from the perspective of the Principle of National Treatment.From the perspective of the Principle of National Treatment,we can find that there are many practical difficulties to be solved in the legislation of foreign investment in AI.Therefore,making prejudgment positioning at the level of domestic law helps to reduce the possibility of violating Principle of National Treatment in future legislation,and also helps to implement and enrich the principle of equality between domestic and foreign investment.The article interprets the three components of Principle of National Treatment,“similar circumstances”,“non-discriminatory treatment” and “justification exception”based on the practice of international investment arbitration,in order to explore the enlightenment for China’s legislation on foreign investment in AI,and to provide academic thoughts on China’s legislation on foreign investment in AI in terms of the objects of legal regulation,specific rules and application of exceptions of these legislation in the field of foreign-invested AI.There are mainly four standards for determining “similar circumstances”,from the most lenient to the most stringent in the practice of international investment arbitration.The four standards are grafted onto the way in which the objects of AI legislation are defined,leading to the conclusion that vague “all-industry” legislation should be avoided,and that on this basis “similar/identical industry” legislation should be differentiated and “same-circumstances” legislation should be selectively adopted.After clarifying the interpretation on the meaning of “treatment” of “nondiscriminatory treatment” and tendency of allocation of burden of proof in international investment arbitration practice,the article finds that with the improvement of legislative technology,discriminatory measures resulting from “de jure treatment” are no longer common.However,China’s legislation on foreign investment in AI still needs to avoid“de facto discrimination” which violates “National Treatment”,to reasonably allocate the burden of proof,and avoid “black boxes” and mandatory technical disclosure challenges.“Justification exception” usually includes two aspects: general exception and fundamental national security exception.“Justification exception” is easily abused by the host country because of its strong subjective factor.Our AI legislation on foreign investment in AI still need to respond and dispel doubts.On the one hand,it is possible to clarify the public order exceptions by regulating “algorithms”,confronting algorithmic bias and avoiding algorithmic discrimination against public order;on the other hand,the security review system of foreign investment shall be properly used based on full consideration of our national conditions and the development of AI.