全球化逆动中的“新自力救济”:“国家干预经济”的合法性探析

Neo Self-helped Remedies in De-Globalization:The Legality of State Interference in Economics

近年来,以美欧为代表的发达国家纷纷展开"新自力救济"——在现行贸易与投资法律框架下,针对他国政府合法干预经济的行为进行反制。在贸易领域,这突出反映在"特殊市场情况"的扩张认定;在投资领域,则集中体现为外商投资审查中对外国政府影响的特别强调。以美欧为代表的发达国家是当前贸易与投资规则的缔造者,但当全球治理规则不符合其国家利益,它们也同样不怠于以单边行为破坏规则。当前的多边法律手段尚无法遏制这一趋势的蔓延。此问题本质上属于经济发展模式之争,也关乎我国2016年后的市场经济外部环境。对此,贸易领域有望通过争端解决引发更高的关注,而投资领域由于缺少有效的争端解决手段,只能依靠企业自身治理结构的完善以及与东道国利益集团的沟通与协调。

In recent years,'Neo Self-helped Remedies' practised by developed countries represented by the US and EU have emerged. That is, sanctions of other countries’ intervention in economic under current trade and investment legal regimes. In the field of trade, it is primarily illustrated in the expanded definition of Particular Market Situation. In the field of investment,it is centered on singling out of foreign government influenced investments in investment reviews. Developed countries represented by the US and EU are the founders of current trade and investment rules, but in case of contradiction of their national interests, they do not hesitate to unilaterally disrupt such rules. Currently no multilateral means could be used to curb this trend. In essence, this issue is a competition between different economic development modes, and is related to China’s future external environment of'Market Economy'after 2016. In the field of trade, this may be dealt with by dispute settlement. In the field of investment, though, because of the lack of sufficient dispute settlement methods, the only possibilities lie in strengthening the governance structure of enterprises as well as coordinating between interest groups.