For the emergence of this situation, there will inevitably be legal constraints. The emergence of international investment law has reflected the important influence for many years, and different viewpoints also involve the subject, object, adjustment scope and origin of international investment law. Although international investment law is the sum of legal norms regulating the international private direct investment relationship, it is also an important branch of international economic law.
I. Introduction and characteristics of investment legal system
International investment is an important form of international capital flow, which enables investors to invest their capital abroad for certain economic benefits. For a specific country, international investment includes domestic and foreign investment. Therefore, foreign investment refers to the investment of foreign investors in capital-importing countries, while overseas investment or overseas investment refers to the investment of investors from capital-exporting countries abroad.
At present, the understanding of the concept of international investment is divided into broad sense and narrow sense. Generally speaking, international investment in a broad sense includes international direct investment and international indirect investment, while international investment in a narrow sense only refers to international indirect investment. Of course, the types of international investment are also these two types.
International investment law is the general name of domestic laws and regulations to adjust the relationship between international private direct investment. Accordingly, the legal adjustment of international investment law can be summarized as the following aspects:
1. The international investment law only regulates international private investment relations. The so-called non-governmental investment relationship mainly refers to the overseas investment of natural persons, legal persons, non-governmental organizations and enterprise groups. Therefore, official investment relations do not fall within the scope of adjustment of international investment law. The so-called official investment is the financing relationship between the government or international organizations and the country.
2. International investment only adjusts international private direct investment relations, excluding international indirect investment relations. Regarding the difference between international direct investment and international indirect investment, I have already mentioned it in the above categories of international investment.
3. The international private direct investment relations regulated by the international investment law include domestic relations and international relations. Mainly reflected in the relationship between private foreign investors and the host country and its legal persons, individuals and their own governments, including the relationship between the host country and the investor's home country government.
4. The subjects of international investment law are the same as those of international economic law, including national governments, international organizations, natural persons and legal persons, with a very wide range.
Socio-economic life is a collection of relations composed of various social relations. Only when economic legislation adjusts the legal relationship between society and national economic interests can a social relationship be effectively stabilized and developed.
Second, the role of international investment law.
Of course, as a legal means to adjust investment relations, international investment law plays an extremely important role in protecting, encouraging and controlling international investment.
(a) The role of protecting international investment
International investment plays a positive role in promoting the economic development of the countries concerned and even the world. At the same time, there will be certain political risks in international investment, which will endanger the safety and risks of investment. Therefore, both capital importing countries and capital exporting countries are trying to give strong legal protection to international investment by legal means, so as to maintain a strong investment environment, ensure the safety and stability of international investment, and promote normal exchanges and cooperation in the international economy.
These legal protection measures are generally taken by capital importing countries and capital exporting countries individually or jointly, and belong to the nature of government guarantee.
(b) The role of encouraging international investment
The protection of international investment by law also has the function of encouraging and promoting international investment. In the international investment law, some legal systems are specially adopted to encourage foreign investment, so that foreign investors can obtain greater benefits or convenience. This phenomenon is extremely common in various countries, and it certainly brings good returns to investors.
The legal measures to directly encourage international investment are mainly manifested in various preferential policies provided by the state to investors, such as tax incentives, financial incentives and administrative incentives. These preferential measures mainly stipulate that in the domestic legislation of capital importing countries and capital exporting countries, developing countries, such as China, give different preferential treatment to foreign investors, including giving foreign enterprises income tax relief, reducing tariffs on machinery, equipment and raw materials imported by foreign-invested enterprises, allowing foreign-invested enterprises to accelerate depreciation, and allowing foreign investors in joint ventures to recover their investment first. Generally speaking, tax incentives are the center of various preferential measures, such as giving investors investment subsidies or low-interest loans, simplifying the procedures for foreigners' entry and exit, import and export of goods, and simplifying the procedures for investment approval. Treaties for the avoidance of double taxation concluded between countries have also played an important role in encouraging international investment.
(C) the role of foreign investment management
Of course, foreign investment has both positive and negative aspects. If we take a laissez-faire attitude or neglect management, it will have adverse effects on the economic development of capital-importing countries and even the international economy, such as abnormal economic development, damage to national industries, control of economic lifeline, pollution of the environment, destruction of resources and so on. Therefore, international investment law is the main legal means to manage foreign investment.
III. Legal System of International Investment of Foreign-funded Enterprises
Foreign investment law refers to the sum of laws and regulations formulated by capital-importing countries on adjusting the relationship between foreign private direct investment. Conversely, let me briefly talk about China.
Of course, in order to encourage foreign investors to invest in China, since 1979, China has successively formulated and promulgated the Law on Sino-foreign Joint Ventures and other foreign investment laws and regulations, and used legal means to adjust and manage foreign investment. Foreign-invested enterprises established according to these laws and regulations have played a great role in China's economic development. However, due to the drawbacks of the legislative system, the problems existing in China's foreign investment legislation are increasingly exposed, especially the latest development of international investment law, which makes China's foreign investment legislation face severe challenges.
(A) the embodiment of foreign-funded enterprises in China
As early as 1978, after the Third Plenary Session of the Eleventh Central Committee of our Party, China implemented the policy of opening to the outside world and adopted various forms to utilize foreign capital and foreign advanced technology and management experience to accelerate socialist modernization. Since 1980, China has successively established five special economic zones in Shenzhen, Zhuhai, Shantou, Xiamen and Hainan, opened 14 coastal port cities, established coastal economic open zones, and announced the establishment of a drive-oriented economic development zone in Shanghai on 1990, forming a coastal open zone. The periphery of opening up is gradually advancing from the south, and the depth of opening up is developing from the east to the west. It has formed a new multi-level and all-round opening-up pattern with national scale, external introduction and internal connection, east-west integration and north-south progress. Over the years, with the deepening of reform and opening up, China has continuously improved and optimized the soft and hard environment for investment, and gradually improved foreign-related economic legislation and foreign investment legislation. For example,1April 21April 4, the fourth appointment and removal meeting of the Sixth National People's Congress passed, and the Detailed Rules for the Implementation of the Law of People's Republic of China (PRC) on Foreign-funded Enterprises (hereinafter referred to as the Law) was promulgated and implemented. China's Law on Foreign-funded Enterprises and its implementing rules were formed on the basis of summing up experience, which is the legal basis for China countries to manage and supervise foreign-funded enterprises and the legal guarantee for foreign investors to invest and set up foreign-funded enterprises in China.
According to Article 2 of China's Foreign Enterprise Law, a foreign-funded enterprise refers to an enterprise established in China with all its capital invested by foreign investors in accordance with relevant laws of China, excluding branches of foreign enterprises and other economic organizations in China. China is a socialist market economy country and a developing country. Therefore, in terms of foreign investment policy and legislation, it not only has similarities between foreign investment laws of socialist countries and developing countries, but also has characteristics of China:
1. Equality and mutual benefit ensure the rights and interests of both Chinese and foreign parties. Adhering to equality and mutual benefit in international economic exchanges is the basic policy of China's foreign investment legislation. In foreign investment relations, the principle of equality means that China and foreign countries have corresponding legal rights and obligations, and their legitimate rights and interests are equally protected in economic mutual benefit.
2. The combination of incentives and constraints focuses on incentives and protection. Like other countries, China's foreign investment law encourages and restricts foreign investment, but focuses on protection. China's laws have detailed and clear provisions on protecting the property of foreign investors and their enterprises, ensuring the remittance of foreign investors' original profits, ensuring the operational autonomy of foreign-invested enterprises, and reasonably solving investment disputes. At the same time, there are many generous incentives and preferential measures for foreign investors and foreign investment, such as tax incentives and tariff reductions.
3. Adapt to the national conditions and refer to reasonable international practices. China's foreign investment legislation is based on China's national conditions. At the same time, on the basis of safeguarding national sovereignty, legal system and national interests, China's foreign investment legislation has made appropriate reference to reasonable international practices, making China's foreign investment law consistent with international common practices and international business management in some terms.
(2) Operation and management of foreign-capital enterprises
Foreign investment and operation in China will involve people, money, goods, supply, production and sales. Due to the different economic systems and levels of economic development in different countries, the management of the operating conditions of foreign-invested enterprises is not the same. Generally speaking, the nationality of market economy in most developed countries tends to adopt national treatment, giving foreign-invested enterprises the same treatment as local enterprises, so that they can carry out various business activities under the same conditions. Developing countries generally have some restrictions on this, such as using local materials, exporting products and hiring local personnel. Especially in developing countries like China, this demand is very strong. Planned economy countries must coordinate foreign-funded enterprises with planned economy, ensure the normal operating conditions of foreign-funded enterprises, and make meteorology have sufficient operational autonomy.
1. Sales business management
Material procurement and product sales of foreign-invested enterprises are two very important links in the production and operation of enterprises, which are directly related to the production and profit of enterprises. Therefore, the foreign investment laws of some countries regulate and control the purchase and sale activities of enterprises.
(1) material procurement
Materials required by foreign-invested enterprises, including machinery and equipment, raw materials, fuel, spare parts, accessories, means of transport and office supplies. Material procurement is a part of enterprise's operational autonomy, and enterprises have the right to purchase from domestic or foreign markets.
Domestic procurement. Many countries, including some developed countries, in order to make full use of their own words, promote their own economic development and solve the labor and employment problems, pay attention to using policies and legal means to promote foreign-funded enterprises to buy the materials they need locally as much as possible, such as giving priority to the use and processing of their own raw materials and natural resources, adding local components to their manufacturing plans, relying on local supply, and so on.
For example, some countries require the automobile industry to reach a certain localization rate. Some countries often encourage foreign-invested enterprises to invest in fish, provided that local materials, components or products are gradually used in production. For example, Congo's investment law stipulates that one of the factors that must be considered in giving preferential treatment to enterprises is to give priority to the use of local raw materials and generally use local products. Of course, China's foreign investment law has similar provisions. When purchasing materials, foreign-invested enterprises should buy them at home as much as possible under the same conditions.
(2) Foreign procurement. In the procurement of the above-mentioned materials, the requirement of giving priority to purchasing local materials is generally based on the fact that local materials and similar foreign materials must be the same or competitive in variety, specification and quality. It means that the domestic market does not have the required materials, or the domestic materials do not meet the requirements in terms of varieties, specifications, quality, etc., or the price is much higher than the international market price, and foreign-invested enterprises can buy them abroad. This is a common rule in all countries.
2. Product sales
The ratio of domestic sales to export sales of products of foreign-invested enterprises involves many reasons, such as price, transportation and tax. This depends not only on the demand of a product in domestic and foreign markets, but also on the openness of foreign markets and the parallel influence on the country's balance of payments.
(1) product export. Encouraging foreign enterprises to earn foreign exchange through export is a common feature of foreign investment laws in various countries. China's foreign investment law also encourages the establishment of export-oriented foreign-invested enterprises and encourages enterprises to sell their products in various international markets. This not only solved the parallel problem of foreign exchange for enterprises, but also tilted the adoption of advanced technology and management experience for enterprises involved in the accident and improved the competitiveness of their products in the international market. Of course, the price of the product is generally decided by the enterprise itself.
(2) The products are sold in China. The state encourages foreign-invested enterprises to export their products, but does not require foreign-invested enterprises to export their products. Some countries stipulate that joint venture products must first meet the needs of the domestic market, such as the laws of the former Soviet Union and Cuba. Some countries stipulate that under certain conditions, foreign-funded enterprises can sell their products at home. According to China's laws, if the products of foreign-invested enterprises are advanced in technology or can replace imported products, they are also allowed to sell in the domestic market or mainly in domestic sales, that is, the policy of "exchanging market for technology" and "promoting development through production" is implemented. As for the proportion of domestic products, our country has no explicit provisions, only requiring foreign-invested enterprises to balance foreign exchange.
Four. Overseas investment and overseas investment management in China.
The purpose of overseas private direct investment is to pursue greater profits than domestic investment, but it also means that overseas investment has greater risks than domestic investment. For capital exporting countries, domestic private foreign direct investment is related to domestic and domestic economic development, so it is necessary to adopt inferior policy measures and legal means to encourage and protect private overseas investment. On the surface, the legal system of overseas investment in capital exporting countries mainly includes two aspects, one is investment protection, and the other is investment encouragement. Of course, investment protection is very important, but from the legislative point of view, the legal system of overseas investment in capital exporting countries is different from that of foreign investment in capital importing countries. There is no uniform law, but a special law or some provisions in some laws are adopted, and the policies for overseas direct investment are obviously different. Even enterprises in different countries may implement different policies.
For example, "Japan is a country that imports resources and exports products. It is of special significance for Japan to develop foreign trade and expand and strengthen foreign economic relations. " After the end of World War II, they initially put forward the policy of "building a country through trade", emphasizing that revitalizing exports is the key to Japan's economic prosperity, and later developed into a trinity strategy of "trade-technology-foreign investment".
(1) Overseas management measures
Although overseas investment activities are of great economic significance to capital exporting countries and are a kind of economic and commercial loss, investors' instinct is to pursue the greatest interests, and the starting point of their business activities is not always to consider the interests of the motherland. Therefore, capital exporting countries must implement some control measures on overseas investment to ensure that their private overseas investment is conducive to their international income balance and economic development.
1. It is required to disclose the status of enterprises with overseas investment.
In order to make the government and society know about the company's financial situation and operating conditions and supervise its operating conditions, the company law and securities law of various countries require listed companies to disclose the situation and publish their balance sheets and other important operating information to the government and society.
Overseas investment companies are mostly domestic listed companies and must abide by the provisions of domestic securities and company law. For example, when a company issues listed securities, it must be registered with the Securities and Exchange Commission and the stock exchange respectively, and the issuing company undertakes the obligation of continuous disclosure, that is, in addition to disclosing relevant information in the registration declaration, it must also submit financial reports on an annual or quarterly basis. These measures and policies have helped the government's domestic and overseas investment enterprises to operate.
2. Stop tax evasion by overseas investment enterprises.
When private investors invest overseas, if they don't report the profits made overseas, it will not only affect the international payment of investors, but also reduce their financial and tax revenues. Therefore, how to prevent overseas investment enterprises from tax evasion is an important content for capital exporting countries to manage overseas investment.
3. Legal measures
In addition to the relevant provisions of the securities law, company law and tax law, other laws of capital exporting countries also play a very important role in overseas investment management.
In some countries, anti-Toth law and anti-monopoly law have had a serious impact on overseas investors. For example, according to the American anti-Tottenham law, as long as extraterritorial acts have an adverse impact on American business, the law is also used for domestic and foreign acts in the United States. If two or more American companies invest in foreign countries to set up new companies at the same time, and the production and sales of this company exclude or restrict the competition of other companies in the American market, they may be investigated by the Anti-Tos Law.
The Import and Export Administration Law plays both a management role and a supervision role for overseas investment enterprises. Some countries restrict domestic enterprises from exporting certain high-tech products or technologies to certain specific countries on the grounds of national security, so that domestic investors are not allowed to invest in key technologies in these countries or invest in subsidiaries established by companies in third countries. There are the above restrictions on export management to the United States.
Foreign exchange management or the government's financial policy also plays an important role overseas. If the country encounters serious difficulties in the balance of payments, it will restrict overseas direct investment and overseas investment loans. For example, Britain adopted this restriction for some time after World War II. At present, although some major developed countries have successively abolished foreign exchange controls and allowed capital to flow freely, it is possible to implement such restrictions again when the countries concerned have difficulties in their balance of payments.
Criminal law also has a considerable impact on overseas investment. For example, the Foreign Bribery Law passed by the United States in 1970 stipulates that it is illegal for anyone to bribe foreign government officials directly or indirectly. The law prohibits American companies from excluding any property from their accounts or falsifying accounts to cover up their activity expenses. If investors obtain investment projects by bribing government officials of the host country, they may be sanctioned by the laws of the host country and the laws of the United States.
(B) China's management of overseas investment
Since the reform and opening up, China has actively introduced technology, but it has also conditionally allowed domestic enterprises to invest abroad. In order to make overseas investment activities play an effective role in promoting economic development, China has promulgated and implemented some laws and regulations and adjusted overseas investment activities.
1. Establishment and cancellation of foreign-invested enterprises
An application for the establishment of an overseas investment enterprise must meet certain conditions and be approved by the competent department before it can be established. Projects that cannot continue to operate for some reason should be reported to the original audit department for approval and cancellation.
According to China's laws, domestic companies, enterprises or other economic organizations with capital sources (foreign exchange) and certain production, technology, management capabilities and talents can apply for the establishment of overseas investment enterprises. China investors must meet the following conditions:
(1) It has been registered by the industrial and commercial department, has a fixed or re-approved business scope, and has a certain capital and business scale;
(2) Enterprises engaged in project contracting or labor cooperation business held overseas must be companies that have been granted the right to operate foreign contracted projects or labor cooperation business with the approval of MOFTEC;
(3) Without special approval, state funds may not be used to invest and set up enterprises abroad in the name of individuals.
2. Foreign exchange management of overseas investment enterprises
(1) Pre-examination of foreign exchange risks and foreign exchange sources
In order to prevent investors from investing in countries or regions with high foreign exchange risks, ensure the effective use of funds, and ensure that investors have reliable sources of foreign exchange and the ability to operate overseas enterprises, the state stipulates that foreign exchange management departments should review investment risks and sources of foreign exchange funds before approving overseas investment projects. The materials required for the audit include the management of domestic foreign exchange investment in the country (region) where overseas investment is located, and the proof of the source of foreign exchange investment funds. , provided by potential investors. The foreign exchange administration department shall make a written examination conclusion within 30 days.
(2) Registration and remittance of foreign exchange investment funds
In order to facilitate the foreign exchange administration to supervise the foreign exchange of foreign investors, the state stipulates that investors who have been approved to invest abroad should go through the registration procedures and remittance procedures with relevant materials at the foreign exchange administration.
(3) Repatriation of foreign exchange profits and assets
Whether overseas investors can repatriate their investment profits in time is related to the country's balance of payments and fiscal revenue. All capital exporting countries take measures to ensure that overseas investors can repatriate profits in time, and China has also made regulations on this.
(4) Foreign exchange preference and foreign exchange supervision
A. Foreign exchange preferences
In order to encourage and cultivate overseas investment, China stipulates that the profits or other foreign exchange gains shared by domestic investors from overseas investment enterprises shall be fully retained within five years from the date of establishment of overseas investment enterprises, and the amount retained after five years shall be calculated according to relevant state regulations.
However, it must be noted that the foreign exchange retained by investors must also be remitted back to China according to the above provisions.
B. Supervision of foreign exchange administration departments
The annual accounting statements of overseas investors, including balance sheets and profit and loss statements, shall be submitted to the foreign exchange bureau within 6 months after the end of the local accounting year, especially for domestic investors.
In violation of these regulations, if the circumstances are serious, the foreign exchange administration department may impose a fine of RMB 654.38+10,000 on domestic investors.
3. Overseas investment management of state-owned assets
Among overseas investors in China, state-owned enterprises occupy a dominant position, and China's investment in China accounts for a large proportion. The different social systems and different economic operation mechanisms of the host country make it very difficult to manage the state-owned assets invested abroad.
In short, in the international investment law system, the legal system of foreign investment in capital-importing countries occupies an extremely important position. In order to utilize foreign capital and develop China's economy, China must encourage and protect foreign capital by legal means, and at the same time impose certain management restrictions. After World War II, with the rapid development of international direct investment, the foreign investment law specially regulating the relationship between foreign private direct investment came into being and developed. The legislative systems of foreign investment laws in various countries are endless, with different names, characteristics and contents, mainly including the scope of foreign investment, criminal conditions, investors' rights, protection and control. In order to encourage foreign investors to invest in China, since 1979, China has successively formulated and promulgated a number of laws and regulations on foreign investment, such as the Law on Sino-foreign Joint Ventures, and used legal means to adjust and manage foreign investment. Foreign-invested enterprises established according to these laws and regulations have played a great role in China's economic development. However, due to the drawbacks of the legislative system, the problems existing in China's foreign investment legislation are increasingly exposed, especially the latest development of international investment law, which makes China's foreign investment legislation face severe challenges.
China's foreign investment legislation must be properly adjusted, and China will have greater development in utilizing foreign investment.
China has strict laws and regulations on the establishment and cancellation of overseas-invested enterprises, and the management of foreign exchange and state-owned assets.