国际投资法体系及其跨国证券投资制度的历史演进——以中国证券市场开放为视角

The Historical Development of International Investment Law System and Security Investment Regulation——From the Perspectives of Chinese Security Open Market

在论述国际投资法体系化进程中的跨国证券投资法律地位问题基础上,认为纯以国内法的视角界定投资含义有失偏颇。这一方法无视国际法的规则,有可能引发法律冲突。尽管如此,就证券投资而言,其国内法的色彩极为浓厚,国际层面的证券投资法仍处于初步阶段,因此,从国内法视角界定证券投资所可能引发的法律冲突将相对较少。只有当国内法未作具体规定时,一般的国际投资法规则才适用到证券投资之上。国际投资法规则的默示适用功能恰恰表明,跨国证券投资属于广义国际投资法重要的组成部分之一。

This article mainly discusses the legal status of transnational security investment under the development of international investment law system with the viewpoint that it is biased to define investment from the perspective of domestic law, which ignores rules of international law and probably triggers law conflict. However, transnational security investments are mainly regulated by domestic legal systems, and security investment law under international level is still in the primary phase. Therefore, to define security investment under domestic law creates rare law conflict. Only as there is no concrete rules concerning security investment under domestic law, can the general rules of international law be applied to security investment. The function that international law rules are applied in the form of tacit acceptance just makes it clear that transnational security investment is the important part of extensive international investment law.