Index

In: China’s Foreign Investment Legal Regime
Author:
Yawen Zheng
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Index

15 Measures on Economic Reform 75
accession to the World Trade Organization (WTO) 11
WTO commitments 22, 25
Agreement on Trade-Related Aspects of Intellectual Property Rights 154
annual inspection of ODIs 98–100
anti-monopoly review 60–62, 72
approval authorities 21, 25, 27n52,32–36, 76–77
approval, conditions for 33–34
approval, criteria of 20–22, 24–25
approval, documents required for 21, 31, 33, 43, 81
approval procedure 20–23, 25, 32–36, 42–44, 46, 73–78, 81
approval procedure, project 31–36, 78, 80
approval procedure, timeframe of 20, 23, 25, 31, 33, 81
approval requirements 24–25, 76
arm’s-length regulation 8, 73, 80, 232
Asian Infrastructure Investment Bank (AIIB) 202–203
base erosion and profit shifting (BEPS) 204–205
Belt and Road Initiative (BRI) 85, 97, 104, 107, 114, ch5, 234
Belt and Road Science, Technology and Innovation Cooperation Action Plan 190–191
connectivity via infrastructure 192–193, 208–209, 230
Digital Belt and Road Programme 196–197
financial integration 209–210, 230
Green Silk Road 194–200
people-to-people exchange 189–190, 230
policy coordination 207, 230
unimpeded trade 188–189, 206, 230
building technological capacity 3, 20–21, 46, 76, 132–133, 188–193
factor productivity manifold 3
technology assistance 129
technology spillovers 3, 128–130
Catalogue of Encouraged Hi-tech Products for Foreign Investments 31
Catalogue of Priority Industries for Foreign Investments in the Central-Western Region 31
chamber of commerce 56, 71, 96, 106
China Export & Credit Insurance Corporation (SINOSURE) 112–115
China, vision of 2
Circular of the MOFTEC Concerning the Approval Authorities and Principles for Opening Non-Trade Joint Ventures Overseas as well as in Hong Kong and Macao (1984 Circular) 75–76
Corruption 34–35, 235
Countermeasures 68, 109
Decision of the State Council on Reforming Investment System 80–81, 89
direct expropriation, protection against 49–50
domestic legal regime, recent change of 41, 55, 71, 73
Foreign Investment Law (FIL) 41, 47–51, 53, 55–57, 62–64, 68, 70–72, 74, 109, 147–148, 156
Measures for the Reporting of Foreign Investment Information (Reporting Measures) 42, 57–60
Regulation for the Implementation of the FIL (FIL Implementation Regulation) 41, 57–60, 65, 67, 71
reporting mechanism 42–44, 56–60, 73, 147
dual-track system 26–27, 153
economic order 7
enterprise autonomy 21–23, 25, 27, 73, 77, 79, 85–86, 90–91, 232
equal treatment 47–48, 71–73
ex post supervision regime 41–42, 53–55, 57–60, 73
inspection according to the suggestions of or information provided by relevant departments or the judiciary organs 54, 60
inspection according to tip-offs 54, 60
inspection ex officio 54,60
publication of the results 59–60
random check 54, 58–60
reporting obligation 53–54
supervisory inspection 53–54 post-establishment supervision
FIE laws 20, 26–27, 37 three laws on FIEs
Five-Year Plan 2, 79–80, 211
foreign invested enterprise (FIE) 12–13, 26, 47, 53, 55, 58–59
contractual joint ventures (CJV) 12, 23
equity joint ventures (EJV) 12–13
wholly foreign-owned enterprises (WFOE) 13
foreign investment flows 5, 221 inward foreign direct investment, outward direct investment
foreign investment legal regime 1–2, 8, 11–12, 232–233
fragmented implementation 63–66, 80
inconsistent enforcement 55–57, 63–64, 67
regulatory overlap 63
free trade zone (FTZ) 44–45, 48
General Agreement on Tariffs and Trade 140
global economic governance 200–205
investment treaty regime 7
multilateral agreement on investment 9
multilateral investment treaty 8, 214–230, 234
government service provided to ODIs 109–112
investigation mechanism 109–110
MOFCOM’s responsibility 111
NDRC, the role of 111–112
prior report system 110
service centre 110–111
green development 4–5, 129, 194–200
climate change 4
environmental governance 4–5
environmental protection 21, 46, 134–136, 194
guideline catalogue of foreign investment industries 22, 29, 32, 67n253
negative list 29, 31, 42, 44–47, 62, 73, 156–157, 221n186
positive list 29, 31
high-income economy 127n16
high-level investment 3
integration into the global economy 4, 21, 46, 76, 158
intellectual property rights (IPR), protection of 50–51, 148, 191–192
interim filing regime 42–43, 58–60, 73
investment dispute settlement mechanism 117, 122, 225–227
alternative dispute resolution 170–171
appellate mechanism 120–121
BIT-based claims 5
China International Commercial Court (CICC) 117–122
domestic courts of the host States 115–116, 118
enforcement and execution 121–122
ICSID Arbitration 177–179
ICSID Convention 116–117, 177–181
investment claims 48, 173–177
investment court 117–122
investor-State arbitration 116–118, 160, 170–183, 233
“One-Stop Shop” Diversified International Commercial Dispute Settlement Platform 121
sovereign immunity 118–119
investment treaties 5–6, 8–9, 117, ch4, 233–234
APTA Investment Agreement 132–133, 170
China-ASEAN Investment Agreement 159, 176, 182
China-Australia BIT 178
China-Australia FTA 156, 158–159, 170–172, 176, 181–183
China-Barbados BIT 174–175
China-Bulgaria BIT 145n117
China-Canada BIT 151–152, 154–155, 159, 176, 181–182
China-Chad BIT 144, 163
China-Columbia BIT 139, 142
China-Czech Republic BIT 148
China-Equatorial Guinea BIT 152
China-Germany BIT 174
China-Greece BIT 178
China-Guyana BIT 154
China-Iran BIT 167
China-Japan-South Korea TIT 159, 164
China-Jordan BIT 157
China-Lithuania BIT 178
China-Mauritius FTA 131, 137, 139, 142, 154, 156, 158, 164–165, 176, 181–182
China-Mexico BIT 151–152
China-Mongolia BIT 174
China-Morocco BIT 155
China-Netherlands BIT 145n119
China-New Zealand FTA 158–159, 172
China-Peru FTA 154
China-Russia BIT 167
China-Seychelles BIT 155
China-South Korea BIT 159
China-South Korea FTA 176
China-Sweden BIT 158
China-Syria BIT 158
China-Tanzania BIT 151, 154, 176
China-Turkey BIT 148, 151, 157
China-UK BIT 152
China-United Arab Emirates BIT 167–168
China-Uzbekistan BIT 151
coverage 9
definition of investment 145–152
characteristics of investment 149, 151
exclusion 149–152
legality, requirement of 145–148
definition of investor 227–228
exception clauses 6, 136–142, 151, 172, 223–225, 228–229
necessity, requirement of 139–141, 224, 229
self-judging 140–141, 224, 229
expropriation 142–144
fair and equitable treatment (FET) 48, 161–166, 222–223, 229
full protection and security (FPS) 166–168
investment promotion clause 130–134
legitimate expectation 48–49
meetings or committee of State parties 131–132, 168–173, 225–226, 233
most favoured nation (MFN) 155, 157–161, 166, 220–222, 229, 234
national treatment (NT) 152–157, 220–222, 229
New York Convention 116–117, 178
preamble 126–130
RCEP 148, 154–158, 160, 170, 218, 221
right of establishment 220–222, 224
South Korea-Singapore FTA 133
US-Argentina BIT 139–140 treaties with investment provisions
inward foreign direct investment 1, 10–13, 210–212
ss foreign investment flows
inward foreign investment projects, categories of
encouraged 28–30, 32, 45
permitted 28–30, 32
prohibited 28–30, 45
restricted 28–32, 45
market access negative list 44–45
market economy 15, 73, 152–153
market-oriented reform 4
Measures for the Administration of Overseas Investment of Enterprises 86–89, 100–101
Multilateral Investment Guarantee Agency (MIGA) 115
national security review 6, 37–41, 60–62, 70, 72–73
authority 37–38, 52
Circular Six 39–40
coverage 37–40, 51–52, 60–61
Interim Provisions on M&A of Domestic Enterprises by Foreign Investors 37–38
legal liabilities 52–53
Measures for the Security Review of Foreign Investments 51–53
procedure 37–40, 53, 61
Provisions of the MOFCOM on Implementation of Security Review System for M&A of Domestic Enterprises by Foreign Investors 39–40
Regulations on M&A of Domestic Enterprises by Foreign Investors 38
National Unified Market 65
necessity defence 136
normative document 20, 62, 64–66, 122–123
Opinion on the Strengthening of the Administration of Overseas Investment Projects (1991 Opinion) 77–78, 80
orthodox Marxism 9–11
outward direct investment (ODI) 3–4, 13–18, 75–78, 85, 101–102, 105, 107–108, 114–115, 210–212 foreign investment flows, outward investment
overseas investment projects, categories of 82, 85–86
encouraged 82, 85, 91
permitted 82
prohibited 82, 86
restricted 85
peaceful rise 6
personal connections with the government 34–35
planned economy 15, 21, 73
post-establishment supervision 36–37, 77, 95–102 ex post supervision regime
private investors 15
production capacity cooperation 97, 104
promotion of ODIs 102–108
credit support 105
fund 103–105
guidance of ODI flows 106–107
information provision 105
reporting operational obstacles, system of 106
tax deduction 105
recordation procedure 93
recourse, channel of 35, 56–57, 69–71, 74
administrative litigation 56, 66, 69–70
administrative reconsideration 56, 66, 69–70
Reform and Opening up 1, 10–11, 15, 232
bring in 15
going-out 15–16, 75, 79–80, 95, 102, 108–109, 175
open-door policy 19, 66, 124
opening up 26, 28, 53 market-oriented reform
registration procedure 80–82, 84, 86–87, 100–101
Regulations on the Administration of Overseas Enterprises 78
regulatory and institutional environment 66–68
rejection of foreign investments 10
round-tripping investment 11–12, 55
scrutiny of China’s ODI 17
security protection 21, 46, 77, 151–152, 211–212
security, scope of 5, 46n147
sensitive industries 84, 86–87
soft power, China’s 39
special economic zones (SEZ) 10, 49
special management measures (SMM) 29–30, 45–46
State-owned enterprise (SOE) 13, 15, 17–18, 25, 72, 151–152, 208, 220, 226–229
statistical system of ODIs 96–98
Statute of the International Court of Justice 163
Third Plenary Session of the 11th Central Committee 1
three laws on FIEs 19–20, 41, 47, 55, 57
CJVL 23–24
Detailed Rules for the Implementation of the CJVL (CJVL Implementation Rules) 23–24
EJVL 20–23
Regulation for the Implementation of the EJVL (EJVL Implementation Regulation) 20–23, 49
Rules for the Implementation of the WFOEL (WFOEL Implementation Rules) 24–26
WFOEL 24–26 FIE laws
treaties with investment provisions 5, ch4
Unreliable Entity List 68
using market in exchange for technology 3
verification procedure led by the MOFCOM 89–95
authorities 89, 91
legal consequences 92–93
reviewing factors 90–92
timeframe 89
verification procedure led by the NDRC 80–84, 86–88, 93–95
authorities 81, 83–84, 89
conditions 81–82, 84
coverage 81, 86
Vienna Convention on the Law of Treaties (VCLT) 120–121, 126
“zero-COVID” policies 67
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China’s Foreign Investment Legal Regime

Toward China’s Development Goals

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Cover China’s Foreign Investment Legal Regime
E-Book ISBN:
9789004534568
Publisher:
Brill | Nijhoff
Print Publication Date:
04 Jan 2023

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