论《服务贸易总协定》对国际投资法的影响
发布时间：2018-09-19 11:08
【摘要】：国际贸易法与国际投资法分属不同的分支学科领域,它们在立法背景、立法目标和具体内容上存在差异,人们对它们的认识也停留在它们属于不同分支学科的层面上,但是随着WT0与投资有关的贸易协定的达成、包含投资章节的自由贸易协定的签订,国际贸易法与国际投资法开始出现连接、交叉、重合。为了使伴随着贸易的投资能够顺利进行,外国投资者要求东道国在投资准入和后续经营上给予外国企业一定待遇,及时公开、公布与投资相关的政策法规。正是经济现实的需要让国际贸易法与国际投资法的联系越来越密切。第二次世界大战之后,和平稳定的社会环境的大背景之下,给了各国服务业良好的发展契机,这样的契机促使服务业的高速发展,传统的服务行业如商业、交通、金融等有了长足的发展,与以往的发展相比更为迅速,同时也有新的服务行业兴起,例如咨询、旅游等。各种服务行业的不断发展,使得服务业能够在国民经济中占据越来越重要的地位,成为一国经济发展的重要动力。但是,不同国家在服务业领域的实力差异大,发达国家往往占据优势地位,而发展中国家在服务业领域的实力欠佳,往往需要进口服务,并且发达国家之间服务业的竞争优势也不尽相同,在它们之间需要进行服务贸易。随着时间的推移,国际服务贸易往来越来越频繁,它日益成为新时期全球贸易的重要组成部分,伴随它产生的问题也为人关注,但是并没有一个统一的协定来规范国际服务贸易的发展,国际服务贸易项下产生的市场准入、投资者待遇、争端解决等问题更多的是通过各国的国内法或双边投资协定来进行规范。美国作为服务业的优势竞争者,它是《服务贸易总协定》的主要推动者。1994年4月达成的《服务贸易总协定》规定的国际贸易形式有四大类。在这四种形式中,国际服务贸易通过"商业存在"这一贸易形式和国际服务投资相联系,因为服务具有的生产与消费同时进行且不易存储的特点,要求一国服务提供者到另一国设立商业机构才能为他国消费者提供服务。通过"商业存在"来完成国际贸易,同时也将外国资本带入他国。在这种情形之下,《服务贸易总协定》的普遍性规则与特定义务对国际投资活动具有约束力,具体而言,国际贸易领域吸纳了一系列促进国际投资自由化的原则,例如最惠国待遇原则、国民待遇原则,它打破了国际服务贸易法与国际投资法相分离的局面,国际社会能够以新的视角,不同于传统的观念,来看待国际服务贸易与国际投资的关系。本文采用学科交叉的研究方法,分析国际服务贸易与国际投资之间的关联,进而分析《服务贸易总协定》如何与国际投资产生连接,通过整体和局部的层面来论述《服务贸易总协定》对国际投资法的推动表现,提出我国作为《服务贸易总协定》的缔约国,需要在服务业领域完善外资立法的个人建议。本文的创新之处在于从国际投资法的角度来分析《服务贸易总协定》的影响。本文正文部分分为三个部分:第一部分:阐明国际服务贸易的概念与特征,分析它与国际投资的关系,提出《服务贸易总协定》通过"商业存在"与国际投资产生连接。第二部分:从丰富国际投资法内涵、加快服务投资立法和政策协调、对双边投资条约具有借鉴意义、对构建综合性多边投资法律体制的启示、为服务投资争端提供保障的整体角度分析《服务贸易总协定》对国际投资法的推动,再分析总协定最惠国待遇原则、透明度原则、国内法规、国民待遇原则、市场准入原则促进国际投资法的体现。第三部分:通过阐述我国服务领域外资法的现状,从立法权限、双轨制、透明度等方面分析不足,提出按照国际标准完善我国服务业外商投资法律法规、完善服务业外资经营监管法规、增强服务业外商投资法律法规的透明度的建议。
[Abstract]:International Trade Law and international investment law belong to different branches of disciplines. They have different legislative backgrounds, legislative objectives and specific contents. People's understanding of them remains at the level of different branches of disciplines. However, with the conclusion of WT0 and investment-related trade agreements, free trade including investment chapters has been included. With the signing of the agreement, the international trade law and the international investment law begin to connect, overlap and coincide. In order to make the investment accompanying trade go on smoothly, the foreign investor requests the host country to give the foreign enterprise certain treatment in the investment admittance and follow-up operation, publish the investment-related policies and regulations in time. After the Second World War, the peaceful and stable social environment has given countries a good opportunity for the development of the service industry. This opportunity has promoted the rapid development of the service industry. Traditional service industries such as commerce, transportation and finance have made great progress. Compared with the previous development, there are also new service industries, such as consultation, tourism and so on. With the continuous development of various service industries, the service industry can occupy an increasingly important position in the national economy and become an important driving force for a country's economic development. Developed countries often occupy a dominant position, while developing countries in the service sector is not strong enough, often need imported services, and the competitive advantages of services between developed countries are not the same, the need for trade in services between them. The important part of Global trade in the period of time, accompanied by its problems are also concerned about, but there is no unified agreement to regulate the development of international trade in services, international trade in services under the market access, investor treatment, dispute settlement and other issues are more through national laws or bilateral investment agreements to enter The United States, as a dominant competitor in the service sector, is the main promoter of the GATS. There are four types of international trade under the GATS reached in April 1994. Among these four forms, international trade in services is linked to international investment in services through the form of "commercial presence" because of service. In this case, the General Agreement on Trade in Services is universal. Specifically, the international trade field has absorbed a series of principles to promote the liberalization of international investment, such as the most-favored-nation treatment principle and the national treatment principle. It has broken the separation between the international trade in services law and the international investment law, and the international community can take a new perspective, different from each other. This paper uses a cross-disciplinary approach to analyze the relationship between international trade in services and international investment, and then analyzes how GATS connects with international investment. It also discusses the relationship between GATS and international investment at both the overall and local levels. The innovation of this paper is to analyze the impact of GATS from the perspective of international investment law. The main body of this paper is divided into three parts: Part I: To clarify. The concept and characteristics of international trade in services are analyzed. The relationship between GATS and international investment is analyzed. The connection between GATS and international investment through "commercial existence" is proposed. The enlightenment of the capital legal system is to analyze the promotion of the GATS to the international investment law from the overall angle of guaranteeing service investment disputes, and then to analyze the manifestation of the GATS MFN treatment principle, transparency principle, domestic laws and regulations, national treatment principle and market access principle to promote the international investment law. The present situation of foreign investment law in service field is analyzed from the aspects of legislative authority, dual-track system and transparency. Suggestions are put forward to improve the laws and regulations of foreign investment in service industry in accordance with international standards, to improve the supervision and regulation of foreign investment in service industry, and to enhance the transparency of foreign investment laws and regulations in service industry.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.4;D996.1
本文编号：2249955
[Abstract]:International Trade Law and international investment law belong to different branches of disciplines. They have different legislative backgrounds, legislative objectives and specific contents. People's understanding of them remains at the level of different branches of disciplines. However, with the conclusion of WT0 and investment-related trade agreements, free trade including investment chapters has been included. With the signing of the agreement, the international trade law and the international investment law begin to connect, overlap and coincide. In order to make the investment accompanying trade go on smoothly, the foreign investor requests the host country to give the foreign enterprise certain treatment in the investment admittance and follow-up operation, publish the investment-related policies and regulations in time. After the Second World War, the peaceful and stable social environment has given countries a good opportunity for the development of the service industry. This opportunity has promoted the rapid development of the service industry. Traditional service industries such as commerce, transportation and finance have made great progress. Compared with the previous development, there are also new service industries, such as consultation, tourism and so on. With the continuous development of various service industries, the service industry can occupy an increasingly important position in the national economy and become an important driving force for a country's economic development. Developed countries often occupy a dominant position, while developing countries in the service sector is not strong enough, often need imported services, and the competitive advantages of services between developed countries are not the same, the need for trade in services between them. The important part of Global trade in the period of time, accompanied by its problems are also concerned about, but there is no unified agreement to regulate the development of international trade in services, international trade in services under the market access, investor treatment, dispute settlement and other issues are more through national laws or bilateral investment agreements to enter The United States, as a dominant competitor in the service sector, is the main promoter of the GATS. There are four types of international trade under the GATS reached in April 1994. Among these four forms, international trade in services is linked to international investment in services through the form of "commercial presence" because of service. In this case, the General Agreement on Trade in Services is universal. Specifically, the international trade field has absorbed a series of principles to promote the liberalization of international investment, such as the most-favored-nation treatment principle and the national treatment principle. It has broken the separation between the international trade in services law and the international investment law, and the international community can take a new perspective, different from each other. This paper uses a cross-disciplinary approach to analyze the relationship between international trade in services and international investment, and then analyzes how GATS connects with international investment. It also discusses the relationship between GATS and international investment at both the overall and local levels. The innovation of this paper is to analyze the impact of GATS from the perspective of international investment law. The main body of this paper is divided into three parts: Part I: To clarify. The concept and characteristics of international trade in services are analyzed. The relationship between GATS and international investment is analyzed. The connection between GATS and international investment through "commercial existence" is proposed. The enlightenment of the capital legal system is to analyze the promotion of the GATS to the international investment law from the overall angle of guaranteeing service investment disputes, and then to analyze the manifestation of the GATS MFN treatment principle, transparency principle, domestic laws and regulations, national treatment principle and market access principle to promote the international investment law. The present situation of foreign investment law in service field is analyzed from the aspects of legislative authority, dual-track system and transparency. Suggestions are put forward to improve the laws and regulations of foreign investment in service industry in accordance with international standards, to improve the supervision and regulation of foreign investment in service industry, and to enhance the transparency of foreign investment laws and regulations in service industry.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.4;D996.1
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