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Bachelor Thesis from the year 2016 in the subject Law - Civil / Private, Trade, Anti Trust Law, Business Law, The Hague University, language: English, abstract: The present bachelor thesis aims to analyse whether the proposed changes of the Draft Foreign Investment Law address the existing legal issues identified within the current market access structure of China.
China has developed a piecemeal pattern of regulating foreign investment since the end of 1970s. The latest law is the Foreign Investment Law (FIL), which became effective on 1 January 2020. The groundbreaking new FIL is well acknowledged for its promises and affirmations pledged to investors, signalling China’s eagerness to improve its investment environment and regain momentum for investment growth. This book provides an updated and holistic understanding of the key features of the regulatory regime on foreign investment in China with critical analysis of laws and their implementation. It also examines sensitive and complex legal issues relevant to foreign investment beyond the 2020 FIL and new developments on foreign-related dispute settlement. The book uses cases of success and failure to illustrate the nuances and differences between law and practice regarding foreign investment. Considering China’s magnitude in the global economy and the weighty role of the regulatory system on foreign investment in China, this book is of great interest to a wide range of audience including academics in the field of investment law, legal practitioners, policymakers, and master's students in law and in management.
Prepared by the East Asian Institute, NUS, which promotes research on East Asian developments particularly the political, economic and social development of contemporary China (including Hong Kong and Taiwan), this series of research reports is intended for policy makers and readers who want to keep abreast of the latest developments in China. This volume summarises four features of the common principles of foreign investment laws in market economies and surveys four aspects of recent developments in Chinese foreign investment laws towards these principles.
On January 19, 2015, China's Ministry of Commerce released a Draft proposal for a new Foreign Investment Law in order to solicit opinions from the public. This new law, which if promulgated will replace the existing laws governing foreign investments, will reduce restrictions on foreign investment and streamline the approval process for foreign investment. However, the law also constitutes a crackdown on foreign investment in sensitive sectors. Most notably, the law will bring the variable interest corporate structure within the definition of foreign investment, and therefore within the ambit of regulation. This structure has been widely used by foreign investors to circumvent restrictions and prohibitions imposed on foreign investment in China. Many of the largest Chinese companies listed on U.S. exchanges are operating in China through a variable interest entity. Their standing under the new law is therefore of paramount importance.Unfortunately, the proposed law does not provide much clarity regarding how existing and new variable interest entities will be treated. Instead, the Draft maintains a broad and flexible approach that has informed the last 30 years of economic transition in China. This approach allows Chinese regulators to engage in selective enforcement, and has therefore been a popular policy choice of the Communist Party of China in it's desire to enjoy the benefits of a market economy, while maintaining tight control. However, it also leaves many questions unanswered and issues unresolved and reduces legal certainty.It is therefore important to develop a more comprehensive understanding of how the FIL fits with the overall objectives of the Communist Party of China, which can provide some indication as to how these unresolved issues may be addressed. Examining the proposed law in its larger context, as a step in China's economic transition, it becomes clear that ultimately Beijing adopts a cautious approach to foreign investment. The Draft, if enacted in its current form is neither a death sentence nor a thumb of approval for the VIE corporate structure. Instead, its provisions are broad enough that the impact of the law will depend upon their interpretation by authorities and courts.
The Committee on Foreign Investment in the United States (CFIUS) is comprised of nine members, two ex officio members, and other members as appointed by the President representing major departments and agencies within the federal executive branch. While the group generally has operated in relative obscurity, the proposed acquisition of commercial operations at six U.S. ports by Dubai Ports World in 2006 placed the group's operations under intense scrutiny by Members of Congress and the public. Prompted by this case, some Members of the 109th and 110th Congresses questioned the ability of Congress to exercise its oversight responsibilities given the general view that CFIUS's operations lack transparency. Other Members revisited concerns about the linkage between national security and the role of foreign investment in the U.S. economy. Some Members of Congress and others argued that the nation's security and economic concerns have changed since the September 11, 2001, terrorist attacks and that these concerns were not being reflected sufficiently in the Committee's deliberations. In addition, anecdotal evidence seemed to indicate that the CFIUS process was not market neutral. Instead, a CFIUS investigation of an investment transaction may have been perceived by some firms and by some in the financial markets as a negative factor that added to uncertainty and may have spurred firms to engage in behavior that may not have been optimal for the economy as a whole. On July 12, 2016, Senator Charles Grassley introduced S. 3161 to include the Secretary of Agriculture as a permanent member of the CFIUS and to include the national security impact of foreign investments on agricultural assets as part of the criteria the Committee uses in deciding to recommend that the President block a foreign acquisition.
This book analyzes China's new foreign investment law which came into force in January 2020. The new law implemented sweeping changes and overhauled China’s foreign investment law regime of the last four decades. The foreign investment law aims to make the business environment more investor-friendly and address some of the contentious issues between US and China in the ongoing trade war. The book explains how the law enhances regulatory transparency. It also outlines the new approval process, that is the pre-establishment negative list system which has replaced the former approval system for foreign investment projects. The book also analyzes China's series of anti-sanction laws. This book will help give readers a better understanding of major changes and benefits under the new law and will be the first of its kind looking at the implications of this important law.
Guanxi (interpersonal relationship) is one of the major dynamics of Chinese society. It has been a pervasive part of the Chinese business world for the last few centuries. It binds literally millions of Chinese firms into a social and business web. It is widely recognized to be a key determinant of business performance, because the life-blood of the macro economy and micro business conduct in the society, including local firms as well as foreign investors and marketers, inevitably faces guanxi dynamics. No company can go far unless it has extensive guanxi in this setting. In China's new, fast-paced business environment, guanxi has been more entrenched than ever, heavily influencing Chinese social behavior and business practice. Despite the current academic and practical interest in guanxi, there is no book-length treatment systematically and vigorously exploring the concept and practice from the business perspective. This book fills that gap by exploring the various social economic cultural, and business issues relating to the complex concept and practice of guanxi.
The book focuses on the substantive protections accorded to investors and investments and on the variations among jurisdictions. Among the many specific issues and topics that arise in the course of the discussion are the following: - problems of transparency and conflict of interest; - the recent growth in IIAs between and among developing nations; - the effect of new model bilateral investment treaties (BITs); - the ability of non-disputing parties to participate in investor-state arbitration; - theories of the interaction of foreign direct investment (FDI) and BITs; - investor-state arbitration as an evasion of public regulatory authority; - the role of investment funds in international investment; - 'fork in the road' provisions; and - institutional versus ad hoc arbitration. International business and other investors will greatly appreciate the in-depth information and insightful guidance in this solidly useful book. It will also be welcomed by jurists and students as a significant milestone in the development of principles in a quickly growing field of practice that is still plagued with inconsistencies.
Since the initiation of economic reforms and trade liberalization 30 years ago, China has been one of the world¿s fastest-growing economies and has emerged as a major economic and trade power. China¿s economy and economic policies are of major concern to many U.S. policymakers. Contents of this report: Most Recent Developments; An Overview of China¿s Economic Development; Measuring the Size of China¿s Economy; Foreign Direct Investment in China; China¿s Trade Patterns; China¿s Growing Overseas Direct Investment; Major Long-Term Challenges Facing the Chinese Economy; Fallout From the Current Global Financial Crisis. Charts and tables.