国际投资法

nullnull第七五国际投资法ContentContentSection 1 General introduction 第一节 国际投资法概述Section 1 General introduction 1.Definition of foreign investment1.Definition of foreign investmentForeign investment is defined as: A transfer of funds or materials from one state （called the capital exporting state) to another state (called the host state) in return for a direct or indirect participation in the earnings of that enterprise. 2.Types of international investment 2.Types of international investment 2.1.FDI and FPI2.1.FDI and FPIForeign Investment is commonly categorized into foreign direct investment (FDI) and foreign portfolio investment (FPI). Foreign direct investment (FDI) is direct investment into production in a country by a company in another country, either by buying a company in the target country or by expanding operations of an existing business in that country. FPI is the entry of funds into a country where foreigners make purchases in the country’s stock and bond markets, sometimes for speculation.2.2 Forms of foreign investment(1)2.2 Forms of foreign investment(1)2.2.1 Greenfield Investment2.2.1 Greenfield InvestmentA form of foreign direct investment where a parent company starts a new venture in a foreign country by constructing new operational facilities from the ground up.  Greenfield investments are the primary target of a host state’s promotional efforts because they create new production capacity and jobs, transfer technology and know-how（专有技术）, and can lead to linkages to the global marketplace. Developing countries often offer prospective companies tax-breaks（税收减免）, subsidies and other types of incentives to set up green field investments. 2.2.2 Mergers and Acquisitions2.2.2 Mergers and AcquisitionsMA occurs when a transfer of existing assets from local firms to foreign firms takes place, this is the primary type of FDI. Cross-border mergers occur when the assets and operation of firms from different states are combined to establish a new legal entity. Cross-border acquisitions occur when the control of assets and operations is transferred from a local to a foreign company, with the local company becoming an affiliate of the foreign company.2.2Forms of foreign investment(2)2.2Forms of foreign investment(2)Equity joint venture（股权式合资企业） Contractual joint venture （合作式合营企业） Incorporated by domestic and foreign investor 内外资方共同举办Joint investment 共同投资 Joint management 共同经营 管理Jointly share profits and losses 共负盈亏2.3 Foreign investment in China2.3 Foreign investment in China 2.4..Build-operate-transfer 2.4..Build-operate-transfer BOT is a form of project financing, wherein a private entity receives a concession from the private or public sector to finance, design, construct, and operate a facility stated in the concession contract. This enables the project proponent to recover its investment, operating and maintenance expenses in the project. 政府授予私营企业以一定期限的特许专营权，许可其融资建设和经营特定的公用基础基础设施，并准许其通过向用户收取费用或出售产品以清偿贷款、回收投资并赚取利润。特许权期满后，该基础设施项目无偿移交给东道国政府。 null Obtaining concession for development 开发者取得特许权或开采权 Co-operation between foreign private investor and host country’s government or government’s agent 合作主体具有特殊性 Usually adopt form of contractual JV 合作方式多为契约式合营Participators to BOT project Contractor 承包商Lender 贷款人Insurer 保险人User 用户Expert advisor 专家顾问Participators to BOT project 3.International investment law 3.International investment law3.1. definition of International investment law: International investment law is a body of rules and norms that regulate foreign private investment relationship. It regulates foreign private investment It regulates foreign direct investment The relationship it regulates includes domestic relationship and international relationship .3.2 Legal system of international investment law 3.2 Legal system of international investment law Session 2 Foreign investment law第二节 资本输入国外国投资法Session 2 Foreign investment law1.Conception and system structure of foreign investment law1.Conception and system structure of foreign investment lawForeign investment law is the body of rules and norms that regulates foreign private direct investment relations. It mainly consists of foreign investment scope, type, condition, investor’s rights and liability, foreign investment protection and encouragement measures. 1.1 Scope of Foreign Investment 1.1 Scope of Foreign Investment Generally, all states’ foreign investment law definitely stipulate the scope of foreign investment, and by way of regulating investment proportion restrain the degree foreign investment involved.1.2 Eligible foreign investment1.2 Eligible foreign investmentIndustries not accessible for Foreign Investment Not only developed countries but also developing countries refuse to open some fields to foreign investment. Those fields mostly concerning national safety, citizen’s ordinary life and public interests as well. (2) Industries restrained for Foreign Investment Primarily, the industries, which are restrained by administration, refer to restraining the equity share (3) Industries permitted and encouraged for Foreign Investment.1.2 Eligible foreign investment1.2 Eligible foreign investment1.3 Foreign investment proportion1.3 Foreign investment proportionTwo kinds of regulations concern foreign investment proportion General ratio applying for normal industries Maximal limit Minimal limit Between maximal and minimal limit Diverse ratios for different industries1.4 Examination and ratification of foreign investment1.4 Examination and ratification of foreign investmentAim of examination and ratification Foreign investment authority Standards of ratification Procedures of ratification 1.5 Foreign investment supervision1.5 Foreign investment supervisionScreening of foreign investment entry Some specific requirements for foreign investment 1.6 Foreign investment incentives and protections1.6 Foreign investment incentives and protectionsGuarantee Guarantee of not expropriation and nationalization Guarantee of remittance of profits, principal, wages of foreign employees. Incentives Tax incentives Preferential policies within special economic zone2 Foreign investment law in China 2 Foreign investment law in China Legal system of FDI in China Constitutional provisions Specific regulations Local legislation 2.2 Characteristics of foreign investment law in China 2.2 Characteristics of foreign investment law in China Session 3 Overseas investment law of capital exporting countries第三节 资本输出国海外投资法Session 3 Overseas investment law of capital exporting countries1.Encouragement and control of overseas investment1.Encouragement and control of overseas investment1.1 Encouragement of overseas investment Preferential tax policy Provision of overseas investment information Financial aid Technology aid 1.Encouragement and control of overseas investment1.Encouragement and control of overseas investment1.2 Control of overseas investment Disclosure of information Control of international tax avoidance and evasion Other means of control Antitrust law, antimonopoly law Access control Foreign exchange control and fiscal measures2.Insurance of overseas investment2.Insurance of overseas investmentRisks for the overseas investment2.1 Overseas investment insurance system2.1 Overseas investment insurance systemOverseas investment insurance An overseas investment insurance policy covers the risk of loss resulting from certain political events in connection with an investment made by an investor in the home country in an enterprise in a host country. 2.1 Overseas investment insurance system2.1 Overseas investment insurance systemCharacteristics of overseas investment insurance: Insurer: state-owned enterprises or government department, with the purpose of protection of overseas investment, not for profit. Insured object: overseas private investment made by eligible investor Insurance coverage: only covered political risks. Commercial risks are not included.null Qualified investor 合格投资者Insurer 保险人Insurance contract 投资政治风险保险合同BIT 双边条约2.2 Risks covered2.2 Risks coveredExpropriation Restriction on transfer and conversion Breach of undertaking war, civil war, revolution in the host stateSession 4 International promotion & protection of foreign investment 第四节 促进保护投资国际法制Session 4 International promotion & protection of foreign investment 1.Bilateral investment treaties1.Bilateral investment treaties1.1 Definition A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state.1.2 Forms of BIT1.2 Forms of BITFriendship Commerce and Navigation Treaties Investment Guarantee Agreement Agreement for promotion and protection of investment1.3The structure of BITContent 内容 财务内部控制制度的内容财务内部控制制度的内容人员招聘与配置的内容项目成本控制的内容消防安全演练内容 1.3The structure of BIT1.4 Chinese-foreign BIT1.4 Chinese-foreign BITIntroduction of Chinese-foreign Bilateral Investment Treaty The Main Contents of Chinese-foreign Bilateral Investment Treaty The Modification of Chinese-foreign Bilateral Investment Treaty 1.4.1 The Main Contents of Chinese BIT1.4.1 The Main Contents of Chinese BIT1、Definition Clause (1) Investment (2) Investor (3) Earning (4) Territory 2、Promote and protect investments 3、National treatment and most favored nation treatment 4、Expropriation 5、Compensation for damages 6、Free transfer 7、Subrogation 8、Dispute settlement for One Contracting Party and the Investor of another contracting party 9、Dispute settlement for Contracting Parties2.Multilateral investment treaties2.Multilateral investment treaties2.1 MIGA MIGA was established in 1988 under the Convention Establishing the Multilateral Investment Guarantee Agency. nullMIGARisk coverage 承保的范围MIGA2.1.1Risk coverage2.1.1Risk coverageMIGA provides non-commercial guarantee for investments made in developing states: (1) Currency Transfer: any introduction attributable to the host government of restrictions on the transfer outside the host country of its currency into a freely usable currency or another currency acceptable to the holder of the guarantee, including a failure of the host government to act within a reasonable period of time on an application by such holder for such transfer2.1.1 Risk coverage2.1.1 Risk coverage(2) Expropriation and Similar Measures: any legislative action or administrative action or omission attributable to the host government which has the effect of depriving the holder of a guarantee of his ownership or control of, or a substantial benefit from, his investment, with the exception of non-discriminatory measures of general application which governments normally take for the purpose of regulating economic activity in their territories2.1.1Risk coverage2.1.1Risk coverage(3) Breach of Contract: any repudiation or breach by the host government of a contract with the holder of a guarantee, when the holder of a guarantee does not have recourse to a judicial or arbitral forum to determine the claim of repudiation or breach, or a decision by such forum is not rendered within such reasonable period of time as shall be prescribed in the contracts of guarantee pursuant to the Agency’s regulations, or such a decision cannot be enforced2.1.1 Risk coverage2.1.1 Risk coverage(4) War and Civil Disturbance: any military action or civil disturbance in any territory of the host country to which this Convention shall be applicable as provided in Article 66MIGAEligible investment 合格投资MIGAMIGAEligible investor 合格投资者MIGA2.2 Advantages of MIGA2.2 Advantages of MIGAAn international organization of vast number of membership Non-government agency of any country Host country’s approval to the guarantee beforehand Self-interest for contracting parties A member of WBG（世界银行）, an influential organization for developing countries.