Ministry of Commerce: authoritative experts answer reporters' questions on "regulations on the list of unreliable entities"

SMM: on Sept. 19, with the approval of the State Council, the Ministry of Commerce promulgated the regulations on the list of unreliable entities (hereinafter referred to as the "regulations"), which shall enter into force as of the date of promulgation. Why is it necessary to establish a list system of unreliable entities? How to protect the legitimate rights and interests of all kinds of market entities, including foreign entities? Does the establishment of a list system mean a change in the Chinese government's attitude towards foreign investment? Centering on social concerns, the reporter interviewed Liao Shiping, a professor at Beijing normal University who has been tracking and studying the list system of unreliable entities for a long time.

The establishment of unreliable entity list system is a necessary system improvement of the Chinese government.

In accordance with the Foreign Trade Law of the people's Republic of China, the National Security Law of the people's Republic of China and other relevant laws, the Chinese Government has formulated and promulgated the provisions to establish a list system of unreliable entities. This system aims to further safeguard the legitimate rights and interests of Chinese enterprises, other organizations and individuals.

Liao Shiping said: the regulations reaffirm that the Chinese Government adheres to an independent foreign policy, adheres to the basic norms of international relations such as mutual respect for sovereignty, non-interference in each other's internal affairs, equality and mutual benefit, and opposes unilateralism and protectionism. we will resolutely safeguard the country's core interests, safeguard the multilateral trading system, and promote the building of an open world economy.

The position of the Chinese government in welcoming and protecting foreign investment will not be changed.

In recent years, protectionism has been on the rise in the field of international trade and investment. Some countries have introduced new restrictions on foreign investment and tightened the examination of foreign investment, which has had a serious impact on the free flow of cross-border capital. According to the forecast of the United Nations Conference on Trade and Development, global foreign direct investment flows will be nearly 40% lower in 2020 than in 2019.

"in the face of the international situation of the spread of investment protectionism and the continuous decline of global investment, China is unswervingly expanding its opening up." Liao Shi commented.

Since last year, China has successively promulgated the Foreign Investment Law and its implementing regulations, the regulations on improving the Business Environment, and the working measures for Complaints against Foreign-invested Enterprises. At the same time, China has greatly streamlined the negative list of foreign investment access in recent years, reducing the number of restrictions from 63 in 2017 to 33 in 2020, a reduction of nearly 50%. All these provide legal and institutional protection for the continuous improvement of the business environment.

General Secretary Xi Jinping has stressed many times that the door of China's opening up will not be closed, but will only be opened wider and wider. The just-concluded 2020 China International Trade in Services Fair and the third China International Import Expo to be held in November this year will help enterprises from all over the world to share development opportunities in the Chinese market and promote global inclusive and mutually beneficial development.

Liao Shibei believes that the formulation and promulgation of "regulations" and the establishment of an unreliable entity list system are aimed at protecting the vast number of enterprises that strictly abide by market rules and the spirit of contract, and this system is only aimed at the illegal acts of individual foreign entities. It does not mean that the position of the Chinese government in welcoming and protecting foreign investment has changed. From the perspective of global governance, it is also conducive to maintaining a normal and fair international economic and trade order and market competition environment.

Liao Shiping said: in the face of the grim situation of the global spread of the COVID-19 epidemic and the world economy falling into recession, countries around the world are trying to find ways to stimulate economic recovery and promote further growth. While the Chinese government is doing a good job in the prevention and control of the epidemic, whether it is deploying "six stability" and "six guarantees" measures, or planning a new development pattern, continuously expanding opening up is one of the key points. China's establishment of an unreliable entity list system is to protect the hard-won achievements of opening up, and must not be interpreted as closing its own market.

Strictly limit the scope of application and clearly define legal liability

What kind of foreign entities might be included in the list? Will listed foreign entities face severe penalties?

Liao Shiping believes that the "regulations" strictly limit the scope of application and are only applicable to violating the principles of normal market transactions, interrupting normal transactions with Chinese enterprises and taking discriminatory measures, thus seriously harming the legitimate rights and interests of Chinese enterprises. situations that endanger national sovereignty, security, and development interests. The regulations do not target either any particular country or a particular entity.

"there are clear and actionable comprehensive criteria and factors for judging what kind of foreign entity should be included in the list of unreliable entities." Liao Shiping said: in accordance with the "regulations," the relevant departments will comprehensively assess the degree of harm to China's national sovereignty, security, and development interests caused by the actions of relevant foreign entities, and the degree of damage to the legitimate rights and interests of Chinese enterprises, other organizations, or individuals. and whether it conforms to the prevailing international economic and trade rules and other factors, make a prudent decision.

At the same time, Liao Shiping pointed out that in accordance with the "regulations," the procedures for listing are standardized and transparent. After investigating the conduct of the relevant foreign entity, the relevant department may make a corresponding decision on whether or not to include it on the list, or it may make a decision directly on the basis of its illegal facts and taking into account the relevant factors. With regard to the investigation procedure, the relevant departments may start according to their functions and powers, or according to the suggestions and reports of the parties concerned. These procedures and decisions are also open and transparent.

"once a foreign entity is included in the list of unreliable entities, it shall bear the corresponding legal liability." On the one hand, Liao Shiping said, on the one hand, the listing means "widespread notification" that the entity has unreliable risks, from which the parties concerned can be warned, vigilant and guard against risks. On the other hand, listed foreign entities should also bear the corresponding consequences for their violations, such as possible restrictions on trade, investment, entry of persons and means of transport. The "provisions" have made clear and clear provisions on these legal consequences.

"of course, in accordance with the provisions, if the violations of the listed entities can be corrected within a certain period of time, consideration can be given to not taking measures to deal with them, which is also the proper meaning of the list system of unreliable entities." He said.

Protect the legitimate rights and interests of all kinds of market subjects with a sound system

How does the unreliable entity list system protect the legitimate rights and interests of all kinds of market subjects?

"A good business environment cannot be created without the protection of legitimate rights and interests." Liao Shiping said: the "provisions" fully protect the legitimate rights and interests of the foreign entities involved, and procedural rights are one of the important contents. For example, in the investigation procedure, the provisions give the foreign entity concerned the right to make statements and pleads.

He further explained that, in accordance with the provisions, for foreign entities that had been included in the list, if there were significant changes in the underlying facts, the relevant authorities could consider removing them from the list; if such entities corrected the violations and eliminated the consequences, it should be removed from the list. The initiation of the removal procedure may be carried out by the relevant departments in accordance with their functions and powers, or by the relevant foreign entities on their own initiative. At the same time, in view of specific circumstances, the provisions also explicitly allow case exemption.

"the establishment of this system is also a guarantee for the rights and interests of all kinds of law-abiding, compliant and normal market entities." Liao Shiping said that all kinds of blockades, withholding, or other discriminatory measures implemented by individual illegal foreign entities will have a significant impact on the business activities of market entities. The "regulations" allow the affected subjects to draw the attention of relevant departments and request them to conduct investigations through suggestions, reports, and other channels, so as to safeguard their legitimate rights and interests.

Liao Shibei said that these institutional arrangements in the regulations are conducive to protecting the rights of relevant market subjects and relieving them of their worries. A stable and predictable business environment and a well-regulated institutional arrangement are undoubtedly the best protection for the main body of the market.

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