National Security in International and Domestic Investment Law Dynamics in China and Europe The Rule of Law in China and Comparative Perspectives Series

This book offers a dynamic introduction to the new developments on national security review of foreign direct investment (FDI) from the perspectives of both domestic law and international investment law. COVID-19 and the Russian invasion of Ukraine have intensified FDI screening to an unprecedented scale, yet its purposes, scope and potential impact remain ambiguous and controversial. The book first attests the legitimacy of FDI screening by using the theory of National Security Constitution. Part I explicates the national security, public order and public health exceptions clauses in international investment law and the novel EU Regulation on FDI screening. Part II provides an in-depth analysis of FDI screening in China, France, Germany, Italy, the Netherlands, Poland and the UK, which have either witnessed momentous changes in domestic law recently or have adopted new laws to cope with the growing security concerns.

The book illustrates how States and the EU are using legal instruments to tackle exigent and emerging challenges and the complexity of national security emanated from foreign investment, in the context of evolving disruptive digital technologies and the structural change of the global economy.

The volume will be of great value to a wide range of audiences including academics in investment and trade law, legal practitioners, in-house counsels, policymakers, business professionals and law and business students at the graduate level.

List of contributors vii

List of abbreviations xiii

Preface and acknowledgments xvii

1 A general constitutional theory for national security review of foreign direct investment 1

FENG LIN

PART I

National security in international investment law 25

2 The essential security interest exception clause in international investment agreements and arbitration: from an exception to a norm? 27

CHENG BIAN

3 Public health, exception clauses and investment protection in the COVID-19 era 51

WEI SHEN

4 Europeanization of foreign direct investment screening: a spotlight on the EU Regulation 82

YUWEN LI

PART II

National security in national investment law 105

5 The national security review in China’s new foreign investment legal regime 107

MAJA RUHL

6 Foreign investment screening mechanism in France 126

CHRISTINE MILES

7 Foreign direct investment screening in Germany 155

JULIA HÖRNIG, STEFAN KIRWITZKE AND FALK SCHÖNING

8 National security in national and international investment law: the case of Italy 176

CLAUDIO DORDI AND G. MATTEO VACCARO-INCISA

9 An inside look at the Netherlands’ new general investment screening mechanism 196

PIM JANSEN AND LEONIE VAN DER LAAG

10 Protection of entities of strategic importance for the State: fragmentation and interplay between regimes in Poland 214

ALICJA ZIELIŃSKA-EISEN AND PIOTR WILIŃSKI

11 The National Security and Investment Act 2021: assessing the UK’s new approach to investment screening 240

ALESSANDRO SPANO

Index 266

Yuwen Li is Professor of Chinese Law and Director of the Erasmus China Law Centre at Erasmus School of Law, Erasmus University Rotterdam.

Feng Lin is Professor of Law and Acting Dean at the School of Law. He is also Director of the Centre for Judicial Education and Research cum Identification of Hong Kong Law (JERI) at City University of Hong Kong.

Cheng Bian is Assistant Professor at Erasmus School of Law, Erasmus University Rotterdam.