Submitted in fulfilment of the requirements for the degree: Masters of Laws LLM by Dissertation (Research) Faculty of Commerce, Law and Management – School of Law University of the Witwatersrand, 2017 / This dissertation interrogates whether there is an irresoluble conflict between the traditional form of protection offered to foreign investments under bilateral and multilateral investment treaties and the right and responsibility of states to regulate in the public interest. It examines the criticisms against the traditional form of protection under such treaties, which have been voiced vociferously in the last few years, and contrasts these with the justifications for it. Ultimately, it appears that the protections and mechanisms for enforcement under investment treaties do act to curtail what would otherwise be legitimate exercises of sovereignty by host states and that this can have a significant chilling effect on a state's ability to implement important regulatory initiatives and policies. It also appears, however, that, although there is potential for tension between the protection of investments and the state's right and responsibility to regulate, this potential can be managed. This dissertation analyses the reaction of the South African government to the concerns it has with its investment treaties, which ultimately found expression in the arguably extreme decision to give notice of non renewal of a number of its investment treaties and the adoption of domestic legislation which provides an undeniably diluted form of protection. This reaction leaves much to be desired and will ultimately have negative consequences of its own. It can be contrasted with that of other actors within the international arena who, whilst also harbouring concerns about the potential incursion of investment treaties into their regulatory mandate, have taken proactive and innovative steps to reform and craft their investment protection obligations to ensure that they retain sufficient regulatory space, without attracting the negative consequences of a complete rejection of the prevailing system. States should recognise their ability to tailor their commitments to their specific and evolving needs and take steps to craft legal frameworks that will provide sufficient investment protection without too great an incursion on their regulatory responsibilities. / XL2018

University of Macau / Faculty of Law

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FDI plays an important role in economic life. It is arguably an even more significant driving force behind economic growth than trade in goods and services nowadays. / China and Canada are both important FDI absorbers, but their FDI laws display various characteristics due to their different economic bases, political structures and legal systems etc. In order to guide FDI practice in the two countries and to draw on Canada's experience for China's FDI law, this thesis mainly introduces the FDI policies of China and Canada, analyzes the FDI law systems of the two countries, and expounds their general regulations on FDI.

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While investment incentives are increasingly employed by the developing economies, the vast amount of literature has failed to reach a consensus on the role of incentive regimes. A fundamental problem with the previous econometric studies is that they assume a mature market condition, under which the government should remain outside FDI competition. However, in reality, most developing countries lack a mature market and market-oriented regulatory institutions. This thesis adds to the conventional wisdom by examining whether and how Chinese investment incentive regimes have been successful in harnessing FDI during the last three decades. Like many developing economies, China is still in the process of building a market economy. The striking ability of China to attract FDI with numerous incentives presents a meaningful laboratory for examining the role of investment incentives. In contrast to most previous economic studies, this thesis does not attempt to examine the economic mechanisms of investment incentives. The basic presumption of this thesis is that incentive measures are instrument of state intervention with designed policy goals. A policy-oriented approach has thus been adopted, under which the role of investment incentives is examined against precisely defined policy objectives in a particular policy context. In China’s case, the efficacy of investment incentives is shown by a strategic and dynamic correlation between the investment incentive regime and its achieved development goals. In the given policy context, their functions cannot be replaced by more desirable instruments due to the political and economic constraints. Besides the economic evaluation, the study adds the legal dimension of evaluation on investment incentives. From a legal perspective, the regulatory space for developing countries is increasingly defined by the international legal regime. Investment incentives should be framed in a way to balance national interests and the level of protection required for foreign investment. The evolution of China’s incentive regime presents a good example to integrate global consensus with domestic imperatives. By unifying its income tax system, China adopted an incentive regime generally consistent with its WTO commitments and could be utilized to its advantages. However, serious problems inherent in the incentive system have already emerged in China, which may hamper its economic development in the long run. The thesis shows that the state’s capacity to channel FDI towards development goals is declining, as its intrusiveness has given way to arbitrariness. A top-down approach deprives foreign investors of their channels to communicate their opinions to the policymakers. The local arbitrariness and corruption in incentive implementation will compound the problem and hinder the inflows of high quality foreign investment. The thesis then proposes that the investment incentive regime in China needs to be upgraded into a more legalized system with non-discrimination, transparency, coherence and an effective monitoring mechanism as its central features. The legalization process would help to alleviate the negative effects of investment incentives. In the absence of a political infrastructure compatible with a rules-based system, the Chinese government needs to start with redefining the government-business relationship with a legal framework and reinforcing an independent judicial system. / published_or_final_version / Law / Doctoral / Doctor of Philosophy

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by Lum Ka-Yee. / Thesis (M.B.A.)--Chinese University of Hong Kong, 1999. / Includes bibliographical references (leaves 34-37). / ABSTRACT --- p.ii / TABLE OF CONTENTS --- p.iii / Chapter / Chapter I. --- INTRODUCTION --- p.1 / Chapter II. --- REFORM OF LEGAL SYSTEM --- p.5 / Stages of legal reform --- p.6 / Legal framework --- p.9 / Features of legal system --- p.12 / Chapter III. --- ROLES OF LEGAL INSTITUTION --- p.16 / Institutionalization of economic reform --- p.16 / Protection of property rights of foreign investors --- p.17 / Reduction of transaction costs --- p.19 / Catalyst of changes within the legal organization --- p.23 / Catalyst of informal institutional changes --- p.24 / Chapter IV. --- PROBLEMS OF LEGAL SYSTEM --- p.26 / Incomplete legal framework --- p.26 / Lack of transparency in approval --- p.27 / Lack of consistency --- p.29 / Enforceability of law and contracts --- p.30 / Chapter V. --- CONCLUSION --- p.32 / BIBLIOGRAPHY --- p.34