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View this email in your browser <https://mailchi.mp/law/perspective-264?e=8329e8896b> 哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看： http://ccsi.columbia.edu/publications/columbia-fdi-perspectives. *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues No. 264 November 4, 2019 Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Alexa Busser ([log in to unmask]) *China’s new Foreign Investment Law: deeper reform and more trust are needed* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f574dec713&e=8329e8896b> * <#m_1491550473855069841_x__edn1> by Yun Zheng** <#m_1491550473855069841_x__edn2> On March 15, 2019, China’s new Foreign Investment Law <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=27695fcb70&e=8329e8896b> was passed, creating a general framework for FDI in China.[1] <#m_1491550473855069841_x__edn3> It marks a milestone in a 40-year policy process, through which China has opened up to the outside world, while incrementally adopting international standards to drive domestic reform. It also signals a new stage of increasingly difficult and substantive reforms. Notwithstanding the current criticism of globalization, the integration of global value chains has significant implications for the international economic order. China’s investment law endeavors to establish an open market to attract and promote the free flow of resources, with Pilot Free Trade Zones serving as experimental precursors. Three features are noteworthy: - Investment facilitation is the first step toward improving the domestic investment environment. The Law provides for a transparent law- and standard-setting process, entitling the participation of foreign investors; mandates a system enabling consultations regarding all investment law and policy matters; simplifies administrative procedures for FDI (e.g., permissions, licensing); and provides for the establishment of bilateral or multilateral cooperative institutions to enhance the international exchange of best practices for FDI, all of which reflect the principles of the WTO’s Joint Ministerial Statement on Investment Facilitation for Development <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=30bf9dbebf&e=8329e8896b>. This is supported by China’s general policy to streamline administrative procedures, delegate powers and improve regulations and services. As investment facilitation does not address market access, standards of treatment and dispute settlement, it does not impinge on the country’s sovereignty and is therefore a rather low-hanging fruit for enhancing the doing-business environment. - The Law grants foreign investors pre-establishment national treatment, with Special Management Measures for Foreign Investment Access <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e9d1c35366&e=8329e8896b> (negative list) as the only exception. This mechanism changes China’s FDI regulatory regime substantially. The negative list is the result of the Pilot Free Trade Zones experimentation underway since 2013 and the exercise of evaluating the potential risks of an open investment market, while responding to foreign investors’ concerns regarding particular issues such as forced local partners. In its latest version, the list (which replaces China’s long-standing Catalogue of Industry Guidance for Foreign Investment <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=9c71dd00ea&e=8329e8896b>) lays out the market-opening timelines for automobile manufacture and finance industries, and eliminates the shareholding ratio requirements for sectors such as the power grid and railway network infrastructure, as well as aircraft design, manufacture and maintenance. Although the list will continue to become shorter (thus opening more industries), its current implementation is insufficient, as the list adopts China’s Industrial Classification <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f3168f4aba&e=8329e8896b>, which differs from international practices and might cause confusion for foreign investors; the listed special management measures fail clearly to refer to specific regulatory rules and thus lack transparency; and once an investment is established, doing business in certain industries remains subject to licenses or permissions. A more transparent, precise and integrated regulatory system is needed so that foreign investors can truly enjoy national treatment. - Regarding investment protection, however, law and policy makers are too eager to please foreign investors, partly because they stretch to address issues not properly included in an FDI law. Concerning the protection of intellectual property rights, the Law explicitly prohibits government officials to force intellectual property transfers or to reveal foreign investors’ business secrets acquired in exercising their authority to any third party. However, this issue might be better addressed through amending the intellectual property law and related mechanisms. The Law also provides foreign affiliates with a complaint mechanism, to facilitate communication with foreign investors in terms of policy coordination or public bodies’ tortious acts. However, enforceable procedures are absent, as well as explanations about the relationship between the complaint mechanism and existing administrative procedures. The Law touches upon issues outside its scope and lacks enforceable mechanisms. This may arouse suspicion rather than boost the trust of foreign investors. The Foreign Investment Law will take effect in January 2020. Detailed regulations are currently being drafted and reviewed at the national level, led by the State Council, the Ministry of Commerce and the National Development and Reform Commission. As provided for in the Law, comments from foreign investors submitted through the drafting process shall be taken into account. While this reform process reflects China’s long-term interests, it faces the immediate difficulty of winning the trust of international investors. ------------------------------ * <#m_1491550473855069841_x__ednref1> *The Columbia FDI Perspectives are a forum for public debate. The views expressed by the author(s) do not reflect the opinions of CCSI or Columbia University or our partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.* ** <#m_1491550473855069841_x__ednref2> Yun Zheng ([log in to unmask]) is Lecturer at the School of International Law, Southwest University of Political Science and Law, and Associate Researcher at the Institute of Free Trade Zones, Sun Yat-Sen University. The author wishes to thank Manjiao Chi, Tong Qi and Qinglin Zhang for their useful insights, and is grateful to Julien Chaisse, Shaun Donnelly and Timothy Stratford for their helpful peer reviews. [1] <#m_1491550473855069841_x__ednref3> The Law is based on a longer and more detailed draft released by China’s Ministry of Commerce (MOFCOM) in 2015 for public comment <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=83928b63af&e=8329e8896b>. The Law was swiftly passed in reaction to external pressure to put China’s domestic system in line with international standards, leaving details for further legislation. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Yun Zheng, ‘China’s new Foreign Investment Law: deeper reform and more trust are needed,’ Columbia FDI Perspectives, No. 264, November 4, 2019. Reprinted with permission from the Columbia Center on Sustainable Investment (**www.ccsi.columbia.edu <http://www.ccsi.columbia.edu>**).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at **[log in to unmask]* <[log in to unmask]>*.* For further information, including information regarding submission to the *Perspectives*, please contact: Columbia Center on Sustainable Investment, Alexa Busser, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b17ef96811&e=8329e8896b> - No. 263, Fabio Morosini, Nicolás M. Perrone and Michelle R. Sanchez-Badin, ‘Strengthening multi-stakeholder cooperation in the international investment regime: The Brazilian model,’ October 21, 2019 - No. 262, Rishi Gulati and Nikos Lavranos, ‘Guaranteeing the independence of the judges of a Multilateral Investment Court: A must for building the Court’s credibility,’ October 7, 2019 - No. 261, Zbigniew Zimny, ‘FDI has benefitted the EU members from Central and Eastern Europe and can continue to do so,’ September 23, 2019 *All previous FDI Perspectives are available at **http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/ <http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/>**. * *Other relevant CCSI news and announcements* - *CCSI is hiring an Economics and Policy Researcher* to help develop and execute the Center’s applied research agenda on energy, extractive industries and sustainable development. Specifically, the incumbent will lead research on the economic and policy frameworks shaping investments in oil, mining and gas globally, and their impacts on sustainable development, as well as on implications for investment of the energy transition. For more details and qualifications, please see our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=531165e10b&e=8329e8896b> . - *On November 7, 2019*, our Fall 2019 International Investment Law and Policy Speaker Series, co-sponsored by Baker McKenzie and Arnold & Porter, continues with a talk by *Martti Koskenniemi*, Professor of International Law, University of Helsinki, Director of Erik Castrén Institute of International Law and Human Rights, on “Private Rights and International Law: A History of Globalization.” *Please see our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a331dd273e&e=8329e8896b> for more information and the full schedule*. - *On November 18, 2019*, CCSI, the Center for Chinese Legal Studies, and the Society for Chinese Law (SCL) will co-host a talk by *Angela Zhang*, Associate Professor of Law and Director of the Centre for Chinese Law, University of Hong Kong, on “The US-China Trade Negotiation: A Contract Theory Perspective.” *Please see our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=82d5ca5951&e=8329e8896b> for more information.* Karl P. Sauvant, Ph.D. Resident Senior Fellow Columbia Center on Sustainable Investment Columbia Law School - Earth Institute Ph: (212) 854-0689 Fax: (212) 854-7946 *Copyright © 2019 Columbia Center on Sustainable Investment (CCSI), All rights reserved.* [log in to unmask] *Our mailing address is:* Columbia Center on Sustainable Investment (CCSI) Columbia Law School - Earth Institute, Columbia University 435 West 116th Street New York, NY 10027 Add us to your address book <https://columbia.us6.list-manage.com/vcard?u=ab15cc1d53&id=a61bf1d34a> unsubscribe from this list <https://columbia.us6.list-manage.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=8329e8896b&c=3b2af6b81a> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=8329e8896b> [image: Email Marketing Powered by Mailchimp] <http://www.mailchimp.com/monkey-rewards/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=monkey_rewards&aid=ab15cc1d53&afl=1> ------------------------------ *Karl P. Sauvant, PhD* *Resident Senior Fellow* *Columbia Center on Sustainable Investment* Columbia Law School - The Earth Institute, Columbia University 435 West 116th St., Rm. JGH 825, New York, NY 10027 | p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask] | w: www.ccsi.columbia.edu | t: @CCSI_Columbia <https://twitter.com/CCSI_Columbia> "The Case for an Advisory Centre on International Investment Law", "An Advisory Centre on International Investment Law: Key Features", "Do not Neglect Establishment Trade: The China-US Example", "Incentivizing Sustainable FDI: The Authorized Sustainable Investor", "The Potential Value-added of a Multilateral Framework on Investment Facilitation for Development", "Promoting Sustainable FDI through International Investment Agreements", "Determining Quality FDI", "The State of the International Investment Law and Policy Regime", "Towards G20 Guiding Principles on Investment Facilitation for Sustainable Development", "Five Key Considerations for the WTO Investment-facilitation Discussions, Going Forward", "International Investment Facilitation: By Whom and for What?", "Moving the G20's Investment Agenda Forward", "Sustainable FDI for Sustainable Development", "Towards an Investment Facilitation Framework: Why? What? When?", "Beware of FDI Statistics!", and "Towards an Indicative List of FDI Sustainability Characteristics", are available at https://ssrn.com/author=2461782 and http://www.works.bepress.com/karl_sauvant/. ____ AIB-L is brought to you by the Academy of International Business. For information: http://aib.msu.edu/community/aib-l.asp To post message: [log in to unmask] For assistance: [log in to unmask] AIB-L is a moderated list.