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What is noteworthy is that there is no provision of the judicial review in the Safeguard Regulations because there are no requirements in WTO Agreement on safeguards. Does this mean no administrative lawsuit concerning safeguard measures decisions may be filed in courts? We cannot find the answer in the context of the Safeguard Regulations, and perhaps only the court can answer this question when a specific case against a safeguard measures is filed.However, if China wish to maintain the unification of judicial review system of administerial decisions in accordance with its Administrative Procedure Law and general jurisprudence theories , the availability of judicial remedies for safeguards decisions seems favorable.
6. Summary
The abovementioned regulations on foreign trade are the basic legislations on the import and export after China’s WTO accession. Although they are much detailed and systematic than regulations before, they are still not sufficient to guide the trivial work and deal with considerable and sophisticated issues coming up in practice, so MOFTEC and other relevant authorities, on the basis of these regulations and within their legal capacities, have made a large number of departmental rules for the purpose of supporting the implementation. Hence, a new system on foreign trade has been framed after the legal reform movement: the root--Foreign Trade Law, the trunks--regulations of the State Council, and the offshoots--various departmental rules as the major practical guidelines .
III Adjustments to Investment and Market Accession Legal System
The Chinese government has paid lots of attention to the introduction of foreign capitals since 1979, and the achievements are spectacular in terms of the statistic amount of capitals. Since the opening-up of the Chinese market, China has made many favorable policies to enterprises with overseas investments and the majority of them are still effective so far . Of course, there are some limitationson foreign investments, mainly on the market accession. Pursuant to the Agreement on Trade-Related Investment Measures (“TRIMS”), the Chinese government began its revision study of foreign investment laws as far as in 1998, and MOFTEC as the competent department directly in charge of foreign investment took the leading responsibility of making amendment proposals. The emphases of amendment were the provisions inconsistent with WTO agreements. In 2001, after the conclusion of Sino-US bilateral agreements on China’s WTO entry, many regulations concerning sector market accession were revised or enacted one by one, and in 2002 a new guidance list of foreign investment industries was promulgated. This guidance list stipulates detailed industries or sectors into which foreign investments are encouraged, restricted or prohibited to go.
1. Amendment of Foreign Investment Enterprises Laws
In China, enterprises with foreign investments are subject to the administration of different laws according to the types of these foreign investment enterprises—Equity Joint Venture, Cooperative Joint Venture or Wholly Foreign-owned Enterprises.
Because the three laws regulating foreign investment enterprises--Law on Chinese-Foreign Equity Joint Venture, Law on Chinese-Foreign Cooperative joint Ventures and Laws on Wholly Foreign-owned Enterprises, were enacted almost more than 15 years agoand some provisions were out-of-date, MOFTEC started to probe the possible changes to them in late 1990s. At the end of 1999, MOFTEC completed the draft reports for the amendment bills to these three laws and submitted them to the State Council. After the review of the Office of Legislative Affairs of the State Council and the approval of the State Council, the amendment bills were proposed to the Standing Committee of NPC. In 2000 and 2001 the Amendment Bills were rectified separately.
Amendments to the three laws were similar in content, which mainly focused on the following three aspects:
(1) Abolishment of the foreign exchange balance requirement. The Amendment Bills deleted requirements that an enterprise shall keep the balance of its foreign exchange incomes and expenditures on its own in the former Chinese-foreign Cooperative Joint Ventures Law and Wholly Foreign-owned Enterprises Law. Pursuant to the National Treatment requirement of WTO, all enterprises, no matter domestic or foreign enterprises, shall enjoy the same treatments, including the accession to foreign exchange. The renewed PRC Foreign Exchange Administration Regulations provide formalities and procedures of using foreign exchanges, which apply to all enterprise in China non-discriminatorily . In today’s China, there is no existing forex restriction for current accounts transactions , while the forex on capital accounts are still subject to approval for exchange and remittance.
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