Thoughts on some legal issues in constructing my country's overseas investment insurance system
Outline:
1. Foreign legislative examples of investment guarantee systems and related contents
(1) Concept and characteristics of overseas investment insurance system
(2) Main contents and foreign legislative examples of related issues
1. Coverage scope (investment insurance Range)
(1). Foreign exchange insurance (2). Expropriation insurance (3). War, civil strife risk (4), other political risks
2. Insured person
3. Insurance objects
4. Investment form
2. The necessity and feasibility of establishing an overseas investment insurance system in my country
(1) Necessity
(2) Feasibility
3. Improvement The conception of my country's overseas investment insurance system
(1) The model of adjusting the insurance system
(2) The establishment of insurance institutions
(3) Qualified investors Definition
(4) Setting of insurance coverage
(5) Mode selection of subrogation rights
4. Conclusion
Construction Thoughts on some legal issues of my country’s overseas investment insurance system
1. Summary:
With the enhancement of my country’s economic strength and the opportunities brought by China’s accession to the WTO, my country’s overseas investments have The investment industry is developing rapidly, but because a systematic legal system for overseas investment insurance has not been established, my country's overseas investment enterprises face huge risks abroad, and the legitimate interests of investors cannot be protected. Therefore, on the basis of a correct understanding of the overseas investment insurance system and drawing on the successful legislative experience of overseas investment guarantees in various countries around the world, establishing and improving our country's overseas investment insurance system will undoubtedly be of great significance to safeguarding the interests of our country's overseas investors, thereby affecting and accelerate the development of our country’s overseas investment activities. This article puts forward its own conception of the construction of my country's overseas investment insurance legal system from the aspects of insurance system form, underwriting agency, insured, insurance objects, coverage scope, etc.
2. Keywords:
Overseas investment insurance system political risk, foreign legislation status and problem conception
3. Text:
Since the 1990s, my country's overseas investment activities have developed rapidly. The regions have become wider and the fields have expanded. This will lead to a further increase in the risks of my country's overseas investment. However, the establishment of my country's overseas investment insurance system has been very slow and lacks The country’s effective overseas investment insurance system has become a “bottleneck” for the further development of my country’s overseas investment. It is imperative to legislate overseas investment insurance systems.
1. Examples of foreign legislation on overseas investment guarantee systems and related contents
(1) Concepts and characteristics
The Overseas Investment Insurance scheme refers to the government of a capital-exporting country providing guarantees or insurance against political risks that overseas investors may encounter abroad. After investors apply for insurance from their home country’s investment insurance institutions, if the political risks are insured If an incident occurs and investors suffer losses, domestic insurance institutions will compensate their losses. [1][1]
On the surface, the overseas investment insurance system has the basic characteristics of the general commercial insurance system such as incidentality, ex post compensation and subrogation; however, if overseas investment is established in various countries, After an in-depth examination of the motivations of the insurance system and the inherent connotation of the insurance system, it is not difficult to find that it has a strong international political and official nature. In general, the overseas investment insurance system is not a kind of private insurance or private insurance, but a government guarantee or a state guarantee. Its insurer, the overseas investment insurance institution, not only has the nature of a special state agency, but its insurance is often related to Intergovernmental investment insurance agreements are closely linked.
This nature of the overseas investment insurance system determines its characteristics that are different from private insurance: (1) The particularity of the insurance objects.
The object of the overseas investment insurance system is limited to private direct investment, that is, investments made by investors for the purpose of controlling and directly participating in the operation and management of overseas enterprises. It does not include the purchase and sale of stocks or securities in overseas securities, that is, securities investments; ( 2) The particularity of the insured risk scope. The risks of the overseas investment insurance system are not ordinary commercial risks or natural risks, but special political risks. The so-called political risk refers to the risk investment that investors cannot resist and control due to political, economic, social, legal and other factors in the host country, mainly including currency exchange risk (or ban risk), expropriation risk and war risk; [2][ 2] (3) The particularity of the role of insurance. The role of the overseas investment insurance system is not only to provide ex post economic compensation when investors suffer property losses due to political risks, but more importantly, it uses the investment insurance agreement between the two countries to prevent problems before they occur to a certain extent. Try to prevent risky accidents from happening as much as possible; (4) The particularity of insurance motives. Overseas investment insurance is essentially a kind of national insurance or government insurance. It is not for profit, but for the purpose of protecting overseas investment and promoting the economic development of the country.
(2) Foreign legislative examples on main contents and related issues
1. Coverage (scope of investment insurance)
Although scholars have studied the scope of political risk There are differences in determination, but the three political risks of foreign exchange risk, expropriation risk and war risk are recognized:
(1). Foreign exchange insurance, also known as prohibited exchange insurance. Foreign exchange insurance usually includes prohibition risk and transfer risk, and is the basic risk insured by investment institutions in the overseas investment insurance system. It mainly refers to the risk that the investment host country restricts or stops foreign exchange transactions due to insufficient foreign exchange, or is unable to conduct foreign exchange transactions due to war or other accidents, resulting in the investor's original profits and other legitimate gains being unable to be freely converted into foreign currency and repatriated to the home country. The main content of foreign exchange insurance is: the local currency obtained by the policy holder (investor) as investment income or profit during the insurance period, or the local currency obtained from the sale of the property of the investment enterprise. If the host country prohibits the transfer of these currencies If converted into free currency, the Overseas Private Investment Guarantee Agency will convert it into free currency.
The United States' "Overseas Private Investment Corporation Amendment Act of 1981" lists non-convertible insurance as a "Class A underwriting item". The main content of the non-convertibility insurance listed in this bill is: the local currency obtained by the policy holder as profit from investment during the insurance period, and the local currency obtained from the sale of corporate property, if the host country encounters a ban on conversion, should be paid by an overseas private person. The investment company converts it in U.S. dollars. According to different situations stipulated in the insurance contract, investors must apply for exchange for U.S. dollars within 30 or 60 days but the local government still does not approve it before they can request exchange from overseas private investment companies. In addition, before the company converts U.S. dollars into U.S. dollars as agreed, investors should deliver cash or checks in local currency to the company at the specified location as required by the company. After the company obtains the due currency, the usual practice is to transfer the price to the U.S. Treasury Department, which then transfers it to the U.S. Embassy in the host country, and the embassy "digests it on the spot."
Japan's "Export Insurance Law" also lists anti-convertible insurance as one of the main types of risks. According to Japanese law, if Japanese overseas investors encounter one of the following situations and their original capital and profits cannot be converted into foreign currency and repatriated to Japan for more than 2 months, they are covered by foreign exchange insurance. Can be redeemed by the Ministry of International Trade and Industry of Japan. These situations are: ① The host country government implements foreign exchange controls or prohibits foreign exchange; ② Due to war, revolution or civil strife in the host country, foreign exchange transactions cannot be carried out; ③ The host country government imposes controls (such as freezing) on ??the amounts due to Japanese investors. ; ④ The host country government cancels permission to remit various amounts due to Japan; ⑤ The host country government confiscates various income amounts. Of course, as mentioned above, these situations must occur after the insurance policy is issued. If they have occurred before, you cannot apply to the Ministry of International Trade and Industry for redemption.
(2). Expropriation insurance
The basic risk underwritten by investment insurance institutions in the overseas investment insurance system. It refers to the risk that the qualified investment of a qualified investor will suffer a total or partial loss due to the host country government taking measures such as expropriation, nationalization or failure to acquire the investment during the insurance period. The institution shall be responsible for compensation for the loss of insured property of the policy holder.
The underwriting of this kind of risk generally needs to meet several conditions, mainly the requirements for the policy holder, as follows: ① When the host country government takes or may take expropriation action on the investment property, the investor is obliged to immediately Report the detailed facts in writing to the insurance institution; ② The insurance institution has the right to require the fund-drawer to take legal and necessary actions before paying compensation, and promptly and reasonably use judicial or administrative means to prevent or resist or protest the expropriation of the host country; ③ Investors are always obliged to assist their country’s insurance institutions in exercising their right to claim against the host country.
The United States calls this type of risk "Class B insured items." Section 238, Paragraph 2, of the United States Overseas Private Investment Corporation Amendment Act of 1981 stipulates that the term "expropriation" refers to "the host government's abolition, refusal to perform, or weakening of itself without the investor's fault or misconduct." The business project contract signed with the investor makes it actually difficult for the project to continue operating." It can be seen from this paragraph that the scope of "expropriation" in U.S. law is relatively broad. In addition to direct expropriation by laws and decrees promulgated by the state, it also includes "gradual expropriation" implemented through various administrative means.
According to Japan's "Export Insurance Law", any assets invested by Japanese private individuals in foreign countries that are seized by the host country's government are subject to this type of risk. Assets include original rights, shares, dividend payment claims and seed debt and interest claims in the form of shares, equity, corporate bonds, loan claims or public bonds; rights regarding real estate, etc. The so-called "seizure" means that the host country government expropriates, confiscates or nationalizes the above-mentioned assets of Japanese investors and deprives them of ownership.
(3). War and civil strife insurance
A basic risk underwritten by investment insurance institutions, which refers to the investment property invested to protect ancestors in the host country during the insurance period due to local wars, war-like acts, rebellions, strikes and riots, etc. and risk of loss. Losses suffered due to war are limited to losses of tangible assets. Losses of securities, archives, bonds, and cash are not covered by insurance. Losses are limited to direct losses suffered by investors and do not include indirect losses. At least 10% of the losses caused by war risk shall be direct losses suffered by investors, excluding indirect losses. At least 10% of the losses caused by war risk shall be borne by the investor himself, and the insurance institution shall compensate 90%.
Since 1985 in the United States, the Overseas Private Investment Corporation has drafted a new format insurance contract, which has made a new summary of the war risks originally insured, added new underwriting contents, and named it "Political Insurance Contracts". "Risk of violent behavior" refers specifically to violent behavior carried out with the main purpose of achieving a certain political goal, such as declared or undeclared war, intentional actions taken by national armed forces or international armed forces; civil war, revolution, Riots, riots, acts of terrorism or vandalism of property. However, actions to achieve labor purposes or student purposes are not covered. Any damage to the tangible assets of an insured project that is directly caused by the above-mentioned political violence shall be compensated for the risk accident by the insurance agency. However, the following four situations are not included in the compensation: ① gold, silver, jewelry, cash, and precious works of art lost in the above-mentioned violent acts; ② the loss is less than 5,000 US dollars; ③ the insured party’s relevant personnel failed to take appropriate measures during the violent acts. Those who suffered losses due to inadequate protective measures; ④ Those who suffered losses mainly due to the misconduct of investors that provoked or provoked violent actions.
(4) Other political risks
Some scholars believe that government default risks, delayed or stopped payment risks, business interruption risks, etc. are also within the scope of political risks and should be insured . Currently, with the exception of MIGA, which is separately listed as a type of risk, default insurance is rarely underwritten by domestic investment insurance institutions. It is usually only used as a special form under expropriation insurance or is underwritten under other circumstances. among the list. "Business interruption" insurance is only a new type of insurance established in the "Overseas Private Investment Corporation Amendment Act" of 1985 in the United States. It insures investors when embargo, expropriation, nationalization or political violence occurs in the host country. The risk that a business will be temporarily interrupted, resulting in losses. However, it has not yet been generally accepted and adopted by countries around the world. These two so-called political risks are difficult to identify, and it is not appropriate for our country's legislation to include them in the insurance coverage.
As for the risk of delayed payment and cessation of payment, it is different from foreign exchange insurance. It refers to all or all of the due claims arising from investors’ capital participation, claims arising from loans of capital claims, and due profits. Partly, there is the risk that the host country will stop paying or delay payment, resulting in no or no benefits at all. The overseas investment insurance systems of Germany and France include political risks for underwriting. This kind of risk may occur to my country's overseas investors at any time, so it is feasible to include it as an independent political risk in the Overseas Investment Insurance Law.
2. Insured (qualified investors)
Overseas investment insurance systems in various countries only provide guarantees for qualified investors. Although the criteria for determining qualified investors vary from country to country, the general principle is based on nationality.
In the U.S. overseas investment insurance system, fully invested investors include:
(1) U.S. citizens refer to natural persons with U.S. nationality;
( 2) A company, partnership, or other association (including a non-profit association) established under the laws of the United States, state and other local laws, or the laws of the District of Columbia and primarily owned by U.S. citizens. The so-called "major" refers to the person who owns all or at least 51% of the property.
(3) A company, partnership or other social group with foreign nationality, more than 95% of its assets are owned by U.S. citizens, legal persons or other corporate owners.
Investors must be qualified not only when the policy is issued, but also when claiming compensation. This refers to two time periods. One is before the risk occurs, the policy holder applies for insurance from the overseas private investment company. When the policy is issued, that is, when establishing an insurance relationship with the company, one of the above conditions must be met, and the U.S. Nationality, or although it is a foreign company, more than 95% of its assets are controlled by U.S. citizens or companies. The other is the claim after the risk occurs. When settling the claim, investors are also required to have qualifications above blood level. According to the law, investors must be qualified in both stages before they can become investors and the policyholders (insureds) in the investment insurance relationship.
Qualified investors who apply for investment insurance in the Japanese investment insurance system refer to natural persons with Japanese nationality and companies and foundations registered and domiciled in Japan.
According to the laws of the country, its qualified investors should be German nationals, enterprises with residence or establishment in Germany and making overseas investments, mainly enterprises engaged in production, mining, commodity sales or transportation. .
Compared with Germany and Japan, the scope of full investors under U.S. law is the broadest, including not only U.S. companies and legal persons with U.S. nationality, but also foreign legal persons with U.S. citizens or legal persons owning more than 95% of the assets. .
3. Eligibility of insurance objects (qualified investment)
According to the U.S. overseas investment insurance system, qualified investments must meet the following conditions:
(1), Investments approved in advance by the host country; (2) must be new investments; (3) are limited to investment projects in countries and regions that have an investment license agreement with the United States.
Qualified investments in Japan’s overseas investment guarantee system must be new investments that are beneficial to Japan’s foreign economic relations (including the expansion of weather-related investments), and must obtain the consent of the investment host country. Unlike the U.S. investment insurance system, Japanese law does not require projects to be invested in countries and regions that have bilateral protection agreements with them, that is, it does not regard "bilateral investment protection treaties" as a condition for qualified investment.
4. Eligibility of investment forms
Investment forms generally include cash investment, physical investment, technology investment, equity investment, etc. Which investment forms are qualified is also one of the contents of the investment insurance system in each country.
The forms of qualified investment in the United States include tangible assets and intangible assets, specifically: 1. Cash investment. U.S. dollars or currency that can be exchanged for 10,000 yuan before purchasing in U.S. dollars; ②. Physical investment. Commodities, equipment and raw materials; ③, Its investment in the country with rights and interests in contractual arrangements, such as labor services, patent rights, profits, income, patent royalties, manufacturing methods, technology and other rights and interests.
Qualified investment forms in Germany include equity investments, investment-type long-term loans or funds provided to overseas branches, and can be in the form of cash or non-cash.
2. The necessity and feasibility of my country’s establishment of an overseas investment insurance system
Since my country’s overseas investment started in the 1980s, my country’s overseas investment has developed rapidly and steadily, and China’s economy has gradually integrated with the world Economic integration has become an increasingly important part of the world economy. Especially after China joins the WTO, more companies will invest abroad. However, my country's overseas investment insurance system still has to choose the insurance system model. There are many problems such as adjustments and the establishment of underwriting institutions that need to be improved, the definition of the scope of policyholders is unscientific, the setting of insurance categories is unreasonable, and there are no clear provisions on the exercise of the right of subrogation. It is imperative to establish a sound overseas investment insurance system.
(1) Necessity
1. The establishment of an overseas investment insurance system is an inevitable requirement for my country's ever-expanding overseas investment scale. Since the reform and opening up, with the development of foreign economic and trade, my country's overseas investment has been expanding, and my country has become one of the largest investors in developing countries. However, the quality of my country's overseas investment is not optimistic. Investment entities face many investment risks during the process of overseas investment. The main manifestations are: (1) The host country often formulates a series of regulations or policy measures to control and restrict the behavior of foreign enterprises. , Enterprises operating as individuals lack the ability to withstand risks brought about by changes in taxation, market and other policies of the host country; (2) The regional structure of investment is unreasonable, with about 80% of investments distributed in developing countries. Developing countries have favorable conditions such as abundant resources, vast markets, and preferential measures. However, the political situation is relatively unstable and the policies are relatively changeable. The accompanying political risks also greatly reduce the safety of my country's overseas investment; (3 ) Most of the foreign currency structure of Chinese enterprises is the U.S. dollar. With the decline of the economic strength of the United States and the improvement of the status of the pound, the euro, and the Japanese yen, the U.S. dollar exchange rate risk is increasing day by day; (4) Those who have signed bilateral agreements with our country There are few countries, and most of them are developed countries. Developing countries with relatively greater investment risks have signed fewer bilateral agreements with my country.
2． The establishment of an overseas investment insurance system is also a need to improve my country's relatively lagging laws and regulations related to the overseas investment insurance system. From the perspective of domestic law, my country currently has no laws and regulations regulating overseas investment insurance relationships. Although the "Interim Regulations on the Management of Insurance Enterprises" promulgated by the State Council in 1985 authorized the People's Insurance Company of China to operate various insurance businesses related to state-owned enterprises, foreign-invested enterprises, and Sino-foreign joint ventures, the People's Insurance Company of China also promulgated the "Foreign Investment Insurance (Political)" accordingly. "Risk Regulations" provide legal and economic protection for the political risks of foreign investment in China, but there is a lack of clear regulations on similar risks for Chinese legal persons and natural persons investing overseas. In addition, our country has joined the Convention on the Multilateral Investment Guarantee Agency in 1988, is a founding member of the Convention, and has a share subscription of 3.138%, ranking first among the second category of member states and fifth among all member states. However, our country lacks corresponding domestic regulations to support it, resulting in a situation where our country only assumes treaty obligations but cannot enjoy the rights granted to our overseas investors by the treaty.
(2) Feasibility
1. The establishment and practice of foreign overseas investment insurance systems have provided valuable experience for our country to establish this system. As can be seen from the above, foreign overseas investment insurance systems have gone through decades since their inception and have gradually matured. This has provided a ready-made model for the establishment of my country's overseas investment insurance system and also provided a concrete basis for the overseas investment insurance system. Implementation provided valuable lessons.
2． my country's accession to the WTO provides more favorable international conditions for the implementation of overseas investment insurance systems. After my country joins the WTO, all areas of China's economy will further integrate with international standards. The establishment of an overseas investment insurance system will be implemented in a more coordinated international environment and will inevitably play a greater role.
3. my country's laws and regulations are increasingly improving, providing good internal conditions for the establishment and implementation of overseas investment insurance systems. As the legal system gradually embarks on the track of standardization, legislation in various economic fields has also been introduced one after another, standardizing the environment for the operation of the market economy. Establishing and implementing an overseas investment insurance system in a standardized environment will definitely achieve twice the result with half the effort.
4. my country's insurance operating mechanism is gradually improving, preparing conditions for the entry of overseas investment insurance. The promulgation of the "Insurance Law of the People's Republic of China" has brought my country's insurance industry into a new track of operating and developing in accordance with the law. The gradual improvement of the insurance system and the increasing functionality of the insurance market have prepared the conditions for overseas investment to enter this new type of insurance.
3. The concept of improving my country’s overseas investment insurance system
Based on the systems and experiences of major countries in the world, we believe that the construction of my country’s overseas investment insurance system should pay special attention to the following aspects:
(1) Model of adjusting the insurance system
- Change the existing unilateralism model and adopt a hybrid model with bilateral as the main focus and unilateral as the supplement.
Passed Analyzing the pros and cons of the typical representatives of the overseas investment insurance system model, the American model, the Japanese model, and the German model, the author believes that the model of my country's overseas investment insurance system should change the existing unilateralism model and adopt a bilateral-based model with a unilateral-based supplement. blending mode. [] On the one hand, it is appropriate for our country to adopt a bilateral guarantee system. Because: (1) my country currently has the realistic basis for adopting a bilateral investment guarantee system. Our country has currently signed more than 100 investment protection agreements, and it is expected that more such agreements will be signed in the future. This is the realistic basis for the adoption of a bilateral guarantee system. And it will help our country guide the investment direction of investors. This is obviously beyond the reach of the unilateralist model. (2) The legal function of the overseas investment insurance system to guarantee political risks is to prevent problems before they occur and to remedy problems before they occur. These two functions are generally completed in conjunction with the investment guarantee agreement between the two countries. Taking the existence of a bilateral investment guarantee agreement as the prerequisite for underwriting is more conducive to nipping problems in the bud, preventing and reducing a country's frequent nationalization and expropriation behaviors, thereby reducing the political risks of international investment and promoting the development of international investment. (3) The adoption of a bilateral investment guarantee system can also ensure that the exercise of subrogation rights is smoother. Among non-commercial risks, the issue of subrogation is the core issue. Only by solving this issue can the effective operation of the investment insurance system be ensured. The biggest advantage of the bilateralism model is that the right of subrogation is confirmed by the bilateral investment protection treaty, which is guaranteed by the validity of international law and can ensure the smooth realization of the right of subrogation. On the other hand, our country should also be supplemented by a unilateral guarantee system and should not regard bilateral guarantee agreements as the only investment conditions. Although our country already has many bilateral investment agreements, it has the basis for implementing guarantees based on the agreements. At this stage, China's overseas investment has entered a stage of stable development, so there should be some room for domestic law to support claims against countries that have not signed bilateral investment agreements and expand the scope of investment guarantees. However, it should be noted that for investment insurance in countries that have not yet concluded a bilateral investment protection agreement with my country, relatively strict restrictions should be stipulated. If the investment does not reach a certain amount, it will not be insured, or high insurance premiums will be charged, or Increase the proportion of uninsured parts, etc.
(2) Establishment of Underwriting Institutions
- my country should adopt a separate system for overseas investment insurance approval agencies and business operating institutions
my country is considering the establishment of underwriting institutions When doing so, the organic connection between various protection and incentive measures for overseas investment should be comprehensively considered in order to achieve mutually coordinated and efficient operations.
1. Establish a unified "Underwriting Approval Committee" as the overseas investment insurance approval agency
my country's overseas investment insurance system should establish a unified specialized agency directly under the State Council to be responsible for overseas investment insurance Approval of Investment Insurance ("Underwriting Approval Committee"). The composition of the “Underwriting Committee Approval Committee” shall include representatives from the Ministry of Commerce, the Ministry of Finance, the Ministry of Foreign Affairs, the National Development and Reform Commission, and the State Administration of Foreign Exchange. The Ministry of Commerce is mainly responsible for assessing and reviewing the risks faced by overseas investors and their extent, as well as the qualifying conditions for overseas investors’ guarantee applications. The Ministry of Finance uses state finance to guarantee advance payments to investors after an insurance accident occurs. The Ministry of Foreign Affairs is responsible for assessing the possibility of political risks in the host country and taking favorable diplomatic measures to avoid or reduce investment losses when political risks occur. The National Development and Reform Commission guides the direction, industry and scale of foreign investment from a macro perspective. From the perspective of ensuring my country's international balance of payments, the State Administration of Foreign Exchange determines the appropriate scale and currency of foreign investment.
2. Export credit insurance companies as overseas investment insurance business operating institutions
According to the nature of overseas investment insurance and the proposed hybrid model, my country’s insurance institutions should have the following characteristics: (1) It should be a public legal person. The government serves as the backing for investment in insurance, plays a guiding role, and embodies the government's foreign investment policy. (2) It should be a commercial organization. The fact that an insurance institution is a public legal person does not exclude its commercial nature. This is proved by the legal practice of the US investment insurance system, so as to facilitate the smooth realization of subrogation under the bilateral guarantee system.
(3) Definition of qualified investors
- Natural persons, foreign-funded enterprises, private enterprises and other entities should be confirmed as qualified investors of my country’s overseas investment insurance system
Regarding the determination of the scope of qualified investors in my country, the main controversy is whether natural persons, foreign-funded enterprises, private enterprises, and foreign legal persons or unincorporated enterprises in which natural persons, legal persons or unincorporated persons in my country have controlling or equity interests can become overseas investment insurance companies in my country. Qualified investors of the system. The author advocates:
1. Natural persons should be qualified investors in my country’s overseas investment insurance system
my country’s current legislation does not recognize domestic natural persons as “individuals” to engage in international direct investment activities. This is contradictory to the developing situation: (1) Our country's laws allow foreign natural persons to invest in our country, but do not allow domestic natural persons to go out, forming an unreasonable "super-national treatment" in fact, which is not conducive to all-round strengthening of our nationals. The ability to proactively compete in the international market. (2) The individual economy and other economic components formed by the investment of natural persons in my country are all subjects of the market economy. They should of course enjoy the same equal rights in market competition. It is theoretically difficult to justify not allowing natural persons to be the subject of overseas investment. (3) Most of the bilateral investment agreements signed by my country proactively grant Chinese natural persons the status of overseas investment subjects. This is also the case in the legislative practice of various countries. Allowing Chinese natural persons to invest overseas is an international agreement signed with my country and a legislative practice in other countries. inevitable trend. Therefore, the author advocates that qualified investors in my country's overseas investment insurance should include natural persons, including natural persons from mainland China, Hong Kong, Taiwan, and Macao.
2. "French-funded" enterprises should be qualified investors in my country's overseas investment insurance system
According to my country's current foreign investment legislation, "foreign-funded" enterprises are all based on Chinese laws. If it is established within the territory of my country, its place of registration and main place of business shall also be within the territory of my country. According to the principle of determining nationality and the principle of territorial jurisdiction, they are all enterprises with Chinese nationality, so they should be protected and governed by Chinese laws. In practice, the establishment of branches overseas by "foreign-funded" enterprises has become one of my country's forms of overseas investment. Therefore, foreign-funded enterprises should become one of the insured persons of my country's overseas investment insurance.
3. Private enterprises should be included as qualified investors in my country’s overseas investment guarantee system
Judging from the current economic situation and future economic development trends, my country’s state-owned enterprises will still be the main force in overseas investment. , however, some private enterprises are entering the international market with a new look due to the rationality and flexibility of their operating mechanisms, and private enterprises have become the new main force in overseas direct investment. [] In order to enhance the potential of my country's overseas investment, we must fully liberalize enterprises of various ownerships with strength and competitive products, and also include them in the ranks of qualified investors in the overseas investment insurance system.
4. Foreign legal persons or non-legal persons that control or hold shares should gradually be included in the scope of qualified insurance applicants
In view of the fact that my country's overseas investment insurance system currently adopts a unilateralist model, it should not be too fast Foreign enterprises controlled or held by natural persons, legal persons or non-legal persons in my country will be included in the scope of qualified insurance applicants without any restrictions. First of all, it is not a common practice in the international community to determine the nationality of investors based on capital control shares. This type of company is insured. Once an insurance risk occurs, even if it exhausts local remedies, my country will not be able to exercise its right to diplomatic protection to claim compensation because it does not comply with the principle of "continuity of nationality." Secondly, the investors stipulated in the bilateral investment protection agreements that my country has signed do not include foreign enterprises controlled or held by natural persons, legal persons or non-legal persons in my country. Therefore, the bilateral investment agreements cannot be used as a basis for my country to settle claims against the investment host country. basis.
Finally, my country's overseas investment insurance system has just started and lacks practical experience, so it is impossible to undertake all investment business at once. Therefore, in practice, we can adopt a gradual expansion strategy, first insuring foreign legal persons and unincorporated enterprises in which we have absolute controlling rights, and then selectively insure enterprises in which we generally control or only hold shares.
(4) Setting of insurance coverage
- It should include three traditional political risks, and it is not suitable to underwrite government default insurance, terrorism insurance and business interruption insurance
The political risks insured by the overseas investment insurance system generally include currency exchange risk, expropriation or similar measures risk, war and civil strife risk, and our country should adopt it. There is no controversy. There is much debate over whether political risks such as government default insurance, terrorism insurance directly related to political purposes, business interruption insurance, and delayed payment insurance should be included in the coverage of my country's overseas investment insurance legal system. The author advocates: