投资准入“负面清单”制度辨析

Understanding on Investment Access' Negative List System

投资准入在国际条约层面既可按欧式投资协定依"东道国法律"准入外资,也可按美式投资协定依"负面清单"准入外资,所体现的是一国投资市场的开放程度。我国正在尝试在国内法领域采用"负面清单"模式准入外资,国际规则层面的"负面清单"制度可以为国内规则层面的"负面清单"制度设计和理念提供借鉴。"负面清单"内规定的限制措施应有相应的法律法规依据,改革外资准入备案制提高准入透明度与便利性,尽可能参照"棘轮机制"增强投资准入规制的稳定性,协调好内资与外资、国内负面清单与国际负面清单的关系。

In the aspect of international treaties, foreign investment can be granted in accordance with the “host country law” according to the European investment agreement, or be granted in accordance with the “negative list” according to the American investment agreement,which reflects the degree of openness of a country′s investment market.China has also begun to try to admit foreign investment in the “negative list” mode in the field of domestic law. The “negative list” system at the level of international rules can provide reference for the design and concept of the “negative list” system at the level of domestic rules.The restrictive measures stipulated in the “negative list” should have corresponding legal and regulatory basis, reform the foreign investment filing system to improve the transparency and convenience of access,refer to the “ratchet mechanism” as much as possible to enhance the stability of investment access regulations, and coordinate the relationships between domestic capital and foreign capital, domestic negative lists and international negative lists.