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Droit des investissements directs étrangers : le cas de la Chine

Abstract : This study aims to give a general overview of the historical development, particularisms and main issues of the positive law of foreign direct investment, by looking at different areas of law, ranging from the history of law to the very content of foreign investment law, and through dispute settlement mechanisms for foreign investment. An exegetical study of laws and regulations on foreign investments is a necessary step for the understanding of the legal regime of foreign direct investment, but its knowledge of the law is not sufficient for an investor to succeed in his investment.Its development is undeniably linked to the elements of the political, cultural, social and economic aspects of the country. From the promotion of Marxist values of the Soviet system under the Mao Zedong period, to the adoption of legal pragmatism under the direction of Deng Xiaoping; from the policy of the planned economy to the market economy. In forty years, the government was able to create an entire legal system from almost nothing. However, the speed of legislative work is by no means a proof of its quality. Indeed, in order to catch up with the legal systems of the economically developed countries, the government had to implement foreign solutions, without carrying out any in-depth adaptation or harmonization work, thus reducing the value and the effectiveness of the law.Initially, the foreign direct investment law consisted only of three separate laws and their implementing regulations : Sino-Foreign EJV Law and its Implementing Regulation, the WFOE Law and its Implementing Regulation, and Sino-Foreign CJV and its Implementing Regulation. This was then competed by other laws and regulations, each governing only one specific form of foreign-invested enterprise.Litigation is part of everyday life which allows the legislator to measure the efficiency of justice within a State. Despite the fact that litigation is the ultimate means of testing the effectiveness a legal system, it is only a last resort, especially in states such as China, in which its history demonstrates a constant preference for alternative modes of dispute resolution to the detriment of contentious proceedings.After three decades of reform, China has become an integral part of the international scene. As a result, its practice of resolving disputes is increasingly aligned with international standards. The quest for effective dispute resolution is now similar to that of other Western states: ideally a dispute must be resolved in the short time frame, at a low cost and with as little stress as possible, but with an acceptable result.It is therefore essential to constantly follow legal news. Indeed, the two recent catalogs (2015 and 2017) illustrate a liberalizing trend of the national market by opening more sectors to foreign investments, and by introducing a system close to the "negative list". And the 2016 Reform replaced the authorization procedure for foreign direct investment projects with a simple registration system. While these recent developments have provided solutions to existing difficulties, due to the number of flaws in substantive law, a thorough reform is needed. The Draft Law on Foreign Investment, published by the Ministry of Commerce in 2015 for public commentary, has the potential to erase all the flaws of the current regime. However, despite the promises made by the government, its future remains very uncertain at the moment.
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Submitted on : Tuesday, August 27, 2019 - 10:36:09 AM
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  • HAL Id : tel-02271693, version 1



Hsiao-Jan Juang. Droit des investissements directs étrangers : le cas de la Chine. Droit. Université Paris-Est; National Chengchi University, 2018. Français. ⟨NNT : 2018PESC0035⟩. ⟨tel-02271693⟩



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