企业海外并购的国家安全审查风险及其法律对策

国家安全审查是对企业海外并购影响最大的贸易保护措施。近年来,数个国家对其外资监管法律进行了修改,其共性是建立或完善外资并购国家安全审查制度。这种对国家安全审查的关注和强调已经成为中国企业海外并购所面临的最大法律风险。从国家安全审查的法律实践中可见两个明显趋势:国家安全概念的扩张与审查过程中政治考量因素的增加,但中国企业应将政治风险与政治因素转换为法律层面的问题,合理进行并购申报,并通过东道国诉讼程序、WTO规则、双边投资保护协定等多种法律手段维护自身利益,减少贸易保护主义对海外并购的危害。

National Security Review Risks and Legal Countermeasures of the Chinese Enterprises’ Overseas Acquisition

National security review is one of the trade protection measures which will make greatest impact on the overseas acquisition.In recent years,several countries had amended their foreign regulatory law,common feature of which is to establish or improve their national security review institution of foreign acquisitions.This concerns and stressing of national security review has become the biggest legal risks faced by Chinese enterprises in their overseas mergers and acquisitions.Two distinct trends can be seen in the legal practice of national security review: expansion of the national security concept and increase of political considerations.However,Chinese enterprises should adopt legal measures such as reasonable acquisitions notice,the judicial review of the host country,the WTO rules,Bilateral Investment Treaty and other legal means to safeguard their own interests,to reduce the hazards of trade protectionism to overseas mergers and acquisitions.