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The Supreme Law to Enhance the Supply of the Rule of Law to the Outside World Issues "One Explanation, Two Opinions"

来源: 证券日报 2019-12-30 09: 19: 26Source: Securities Daily

The supply of the rule of law to promote opening up has recently been strengthened again.

On December 27, the Supreme People's Court held the "Interpretation of the Supreme People's Court on Certain Issues in the Application of the" Foreign Investment Law of the People's Republic of China "" (the "Interpretation") and the Supreme People's Court's "About the People's Courts for the Further Construction of the Belt and Road" Opinions on Providing Judicial Services and Guarantees (referred to as "Belt and Road Opinion 2") and "Opinions on the People's Courts Providing Judicial Services and Guarantees for the Construction of the Lingang New Area of China (Shanghai) Pilot Free Trade Zone" (referred to as "Opinions on New Areas" 》).

According to reports, the Interpretation fully implements the spirit of expanding opening up and protecting the legitimate rights and interests of Chinese and foreign investors on an equal footing. Mainly reflected in: First, for investment contracts formed in areas other than the negative list, the people's court does not support the parties' claim that the contract is invalid or not in effect because the contract has not been approved or registered by the relevant administrative department; second, Even in areas where investment is restricted by the negative list of foreign investors' investment, as long as the parties have taken necessary corrective measures before the people's court makes a valid judgment, the investment contract can still be considered valid. Third, even when the investment contract is signed, it does not meet the negative The requirements of the list, but before the effective judgement is made, if the negative list adjustment relaxes the restrictive requirements, the investment contract may also be considered valid.

The “One Belt One Road Opinion 2” proposes “four innovations” to further improve the “Belt and Road” international commercial dispute resolution mechanism: First, to encourage and attract parties with no connection points in international commercial disputes to agree to choose the jurisdiction of international commercial courts to serve global international commercial disputes The second is to expand the scope of international commercial expert committee members, to expand the construction of a "one-stop" multi-disciplinary platform, and to appropriately introduce international commercial arbitration institutions and international mediation institutions to join the "one-stop" platform; the third is to improve cross-border insolvency coordination Mechanism, explore the application of major bankruptcy procedures and the system of major interest centers, and protect the rights and interests of creditors and investors in accordance with the law; the fourth is to encourage the establishment of regional bilateral and multilateral dispute settlement cooperation mechanisms. Support Hong Kong in the construction of regional legal services and dispute resolution centers, the establishment of a joint arbitration and joint mediation mechanism for international commercial disputes, and the addition of expert members in the Hong Kong Special Administrative Region. At the same time, it promotes the mutual recognition and enforcement of judgments of international commercial courts, continuously expands the influence, credibility and attractiveness of China's international commercial courts, and promotes China to become an important settlement of international commercial disputes along the “Belt and Road”.

The "New Area Opinions" creates a legalized business environment for the new area's investment and trade liberalization system. First, in order to ensure the convenience of investment and management of fair competition in the new area, the People's Court implemented the "separation of licenses and licenses" reform in the new area to improve foreign investment. Management measures such as security review and antitrust review provide support in accordance with law. Second, in order to ensure the implementation of high-standard trade liberalization in new areas, the people's courts must pay close attention to the construction of Asia-Pacific supply chain management centers in new areas, promote the development of cross-border digital trade through judicial decisions, and support the establishment of new formats such as cross-border e-commerce overseas warehouses. Rise. Third, in order to ensure the security of the digital Internet across the border in the new area, the people's courts must increase the judicial protection of rights and data such as patents, copyrights, and corporate trade secrets, and promote 5G, blockchain, cloud computing, the Internet of Things, and the Internet of Vehicles. The use of new-generation information technology will provide judicial protection for the establishment of data security management mechanisms in new areas and the pilot of cross-border data flows. Fourth, in order to expand the construction of the Shanghai International Shipping Center and the global hub port, the people's courts must properly handle maritime and maritime cases such as port construction, shipping finance, maritime cargo transportation, and marine ecological protection. Strengthening judicial protection in areas such as opening up and improving Shanghai's ability to gather and allocate international routes and cargo resources. (Reporter Zhang Ye)

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