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Analysis of the Identification and Application of "National Security" Provisions in Foreign Investment

Author(s)

Xinyue Xing*

Affiliation(s)

Faculty of Law, Macau University of Science and Technology, Macau, China *Corresponding Author

Abstract

China and the United States, as significant entities in global outward investment, consider factors that extend beyond the economic sphere, delving into the political realm to a considerable extent. The proposed foreign investment review system by the United States fundamentally aims to curb the advancement of Chinese technology, using "national security" as a pretext to restrict American investments in China. This move contradicts the essence of economic globalization and poses obstacles for Chinese enterprises seeking to invest in the United States. Therefore, it is imperative to refine the criteria for determining "national security" and optimize the application of "national security" provisions. This will enable China's high-tech industries to better leverage national security clauses in foreign investments, avoid potential risks, and propose effective mechanisms and pathways to mitigate risks in outward investments from a "national security" perspective. To a certain extent, this can also inject new momentum into the sustainable development of international legal frameworks governing foreign investments.

Keywords

Foreign Investment Review; Foreign Investment Security Review; National Security; Foreign-Related Legal Governance

References

[1]Liu Zhu, "Risks and Countermeasures of Security Review for China's Technology-Seeking Investment in the United States," 2016 Master's Thesis, East China University of Political Science and Law. [2]Joel Slawotsky, "National Security Exception in an Era of Hegemonic Rivalry: Emerging Impacts on Trade and Investment," in Julien Chaisse et al. eds., "Handbook of International Investment Law and Policy," Springer, 2021, p.545-578. [3]Zhang Naigen, "The Security Exception Clause of International Economic and Trade Treaties and its Interpretation", Rule of Law Research, No. 1, 2021. [4]Karl P. Sauvant et al., "The Rise of Self-judging Essential Security Interest Clauses in International Investment Agreements," Columbia FDI Perspectives, No.188, p.1-13(2016). [5]Gong Baihua, Zhu Jiacheng, "On the Basic Principles of China's Overseas Investment Legislation," in "Social Sciences," Issue 10, 2022. See Liu Jingdong, "Analysis of the Applicable Boundaries and Development Trends of 'National Security' Clauses—From the Perspective of International Trade Rules," in "Law Science Magazine," Issue 2, 2023. [6]Liu Jingdong, "The application boundary and Development Trend Analysis of the" National security "clause - from the perspective of International trade Rules", Journal of Law, No. 2, 2023. [7]Shen Wei, "The Security Dilemma of International Economic Law—From the Perspective of Game Theory," in "Contemporary Law," Issue 1, 2023. [8]Zhu Yue, "Paradigm Optimization and Application of 'National Security' Clauses in Investment Agreements," in "Politics and Law," Issue 8, 2024. [9]Lizzie Knight & Tania Voon, "The Evolution of National Security at the Interface Between Domestic and International Investment Law and Policy: The Role of China," The Journal of World Investment & Trade, Vol.21:1, p.104-139(2020). [10]Zhu Yue, "Paradigm Optimization and Application of 'National Security' Clauses in Investment Agreements," in "Politics and Law," Issue 8, 2024. [11]United Nations Conference on Trade and Development, UNCTAD’s Reform Package for The International Investment Regime, 2017, p. 25. [12]Liu Zhu, "Risks and Countermeasures of Security Review for China's Technology-Seeking Investment in the United States," 2016 Master's Thesis, East China University of Political Science and Law. [13]Russia-Measures Concerning Traffic in Transit, WTO Doc. WT/DS512/R, Panel Report, paras.7.53-7.101. [14]Eric De Brabandere & Isabelle Van Damme, "Good Faith in Treaty Interpretation," in Andrew D. Mitchell et al. eds., "Good Faith and International Economic Law," Oxford University Press, 2015, p.37-59.