On the"negative list"

徐一萌

Abstract： At present， the "negative list" management model has been fully accepted by nearly 80 countries， there are more and more countries choose to give up a "positive list" instead "negative list"， its reason is that the "negative list" have its unique advantages. At present， China embarked on a "negative list" attempt. In this paper， the "negative list" of history to summarize， and with its "relatively positive list”， describes its advantages， discusses its significance for our country.

Key Word： negative list ， positive list ， foreign investment management

"Negative list"， is a relative concept， "positive list"， the official name of the term should be “Non-Conformity Measures”， it is the current internationally accepted one kind of foreign investment management Method. Simply put， in which international investment agreements， the Parties in the form of a list of prohibited foreign investment in listed or restrict foreign investment in proportion. Its content is usually associated with national treatment， most-favored-management measures do not match， or the performance aspect of the Parties， executives and other management tools required.

1 the history of "negative list"

"Negative List" should be the first time in 1834， the German customs union agreement in. In this agreement， although did not raise the "negative list" of the term， however， we can see that the "negative list" of the prototype.

"Negative list" of further development after World War II. April 2， 1953， "the US-Japan Treaty of Commerce and Navigation，" the United States and Japan signed， and regardless of its impact on the US and Japan on how， but this treaty does is to further develop the "negative list." Expressly provided in Article VII of the treaty： "The Parties should be based on national treatment to nationals or companies of the other party to engage in commerce， industry， finance and other commercial activities on its territory， but utilities， shipbuilding， air， water， except banking and other industries. "①

However， the "negative list" for the first time the way of the document appears， proposed by the United States in the 1980s. During this period， the United States with a number of countries have signed bilateral investment agreements. "North American Free Trade Agreement，" Article 1108 for the first time in the manner outlined for the investment industry and field was limited.

With the deepening of trade between countries around the world， and investment between countries more and more frequent. The "negative list" system after 20 years of development and improvement， has become an important market access system of international trade and investment fields. So far， the world'；s nearly 80 countries to implement the "negative list" management model.② "Trans-Pacific Free Trade Agreement" and "trans-Atlantic trade and investment partnership agreements，" This year， the "negative list" typical management model for the US-led made.

2 the "negative list" of jurisprudence elaborated

"Negative list" management model， follow the "law does not prohibit or free" Law philosophy. Compared with the prior internationally accepted， "the law which prohibits unauthorized" as the basic concept of a "positive list" has obvious progressive significance.

"Law which prohibits unauthorized" and "no legal prohibition namely freedom" are two basic legal concepts， corresponding to the launch of private rights and freedom of public power. Legal assume everyone is a rational economic man， as long as no law does not expressly prohibit you can do it in any country， organization or individual has the right to prohibit. Compared to the original "law prohibiting unauthorized" to "no legal prohibition that is freedom" as the theoretical source of "negative list" will undoubtedly have a broader extension. We can provide more freedom to innovate and impetus for economic development. Wang Liming believes that implementation of the "negative list" management model， is the return of private self-consciousness， self-consciousness is manifest justice.

Currently， "no legal prohibition namely freedom" law that they do not violate general international obligations， there is no violation of the "negative list" freedom specifically listed prohibited items， there is behavior.

3 the "negative list" compared to a "positive list" of comparative advantages

1. compared to the "positive list"， "negative list" more in line with the trend of world development.

Since the 20th century the mid-1980s， the liberalization of international investment trend， countries have reduced restrictions on foreign investment， greater efforts to attract foreign investment， strengthening laws and policies on foreign investment protection and promotion of FDI （Foreign Direct Investment， foreign direct investment） development of. Thus， compared to countries on the need for a "positive list" more relaxed and liberal investment management system. From this point of view， the "negative list" will undoubtedly have a more superior properties.

2. the "negative list" more conducive to improving the foreign investment environment to attract foreign investment.

Listed in the "negative list" to all foreign investors listed prohibited items， all items not on the list are free within the investment. This has at least two advantages： （1） increase the transparency of foreign access； （2） simplification of administrative examination and approval procedures for foreign investment， foreign investment makes more convenience and freedom.

4 the "negative list" Significance to China

2015， China to Shanghai FTA as a starting point， the beginning of our country "negative list" management model experiments. So far， the experiment has been extended to Guangdong， Tianjin， a total of four free trade area. On Shanghai FTA is concerned， China'；s implementation of "negative list" management model has the following progressive.

1. our country is an effective way to comply with the international development trend， and the international economy.

The level of China'；s economic development is restricted by the in between， has been adherence to the "post-admission national treatment + mixed inventory" management model， for now， does not meet the trend of the times. Meanwhile， China and the United States five ongoing investment negotiations， but also to "negative list" as a precondition. Therefore， management of change， to follow the development trend of the times at the request of our country into the global market， have an important role in promoting.

2. to enhance the level of administration， the implementation of "decentralization" an important demonstration of reference.

"Negative list" expand broad requirements of the Government in the formulation of the list must be clearly positioning the country， local industry development， for which the field is definitely not foreign entry， which may be appropriate to enter the field， which can be fully liberalized areas must have a clear understanding. This ruling ability and level of government proposed a higher demand. Therefore， the "negative list" for Forced government to raise the level of administration， has its positive significance.

3. the "negative list" management model also involves a question of transparency. Transparency here， including two aspects： First， government policies and the information to be disclosed in a timely manner； second， once the dispute settlement mechanism， in dispute should be transparent. This way， we can urge the government power according to law， improve the ability to govern.

Therefore， Shanghai FTA as China'；s first implementation of the "negative list" of the region， is the first country to implement the practice of administrative examination and approval system reform， the direction of their experience and the way of administrative reform has high reference.

4. the implementation of the "negative list"， it is possible to promote the transformation of government functions.

Historically， China'；s government has been the mode of administration government. Seventeenth Party Congress pointed out： "speed up the administrative system and build a service-oriented government"， Eighteen Third Plenary Session once again emphasized： "the effective transformation of government functions， government and legal system building service-oriented government." ③

Foreign investment in the implementation of the "negative list" management model， which requires the government according to law government of modern philosophy， and gradually get rid of the manager'；s role， turning the server and let the market decide the market. "Negative list" submitted for the functions of government to provide an opportunity for change and a challenge.

Note： ① any clear： "negative list， new trends in international investment rule"， November 6， 2013 022 Daily Edition.

② Chinese Ministry of Commerce： "77 countries have adopted national treatment before admission and negative inventory model"， People'；s Daily.

③ "Chinese Communist Party Central Committee at its eighteenth third plenary meeting communique，" "People'；s Daily"， November 13， 2013

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