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Foreign investment china approvals

Even if a foreign company does not set up a physical enterprise in China or acquires a Chinese company — if it simply invests in a project within China's borders, that stake is counted as foreign investment. At its crux, this system provides much greater market access compared to before. To level the playing field, China is offering national treatment of foreign investors at the pre-establishment level, where normally around the world, foreign investment being treated the same as a domestic firm is a benefit offered at the post-establishment stage.

In addition, China has included negative lists for industries that are either prohibited or restricted to foreign investment, which grants much greater market access versus a positive list. Positive lists are usually used by developing countries; while negative lists are usually favored by advanced economies. Under the new law, however, no government approval is required at the pre-investment stage.

Investors can simply register their investments with relevant authorities, thus greatly simplifying the process of doing business in China. For example, technical cooperation involving the intellectual property IP of a foreign investor with a Chinese partner must be undertaken on the basis of free will so that IP cooperation is equal, fair and commercial in manner. The new law prohibits forced technology transfer by any administrative body within China — and if found guilty of IP infringement or noncompliance, the infringing party faces severe penalties, legal liabilities and potentially criminal charges.

Speaking to CGTN on the new law, Nick Coyle, executive director and CEO of the China Australia Chamber of Commerce, said that the law appears positive with a more simplified legislation, increased transparency, and enhanced IP protection, but stressed that it all boils down to implementation. All of those are very, very good. With the new FIL coming into force, the legal basis for this approval will no longer exist, but approval is still listed as one of the conditions for foreign investors to get access to the restricted area.

Investors therefore need to pay close attention to how the approval process will be changed under the new management system. However, foreign investors should pay close attention to the Negative List anyway because it is frequently updated. Article 34 and Article 37 of the new FIL establish a foreign investment information reporting system in China for the management the foreign investment. According to Article 34, foreign investors and FIEs are required to submit relevant information to the commerce department in charge through the Enterprise Registration System or the Enterprise Credit Information Publicity System.

The content and scope of foreign investment information report shall be determined based on necessity. Authorities will not be allowed to request any investment information that can be obtained by interdepartmental information sharing. Article 37 stipulated the penalties of noncompliance. The commerce department in charge shall order the foreign investors or the FIEs to make corrections within a time limit if they fail to report the investment information as required.

The new FIL defines the bureau in charge of the foreign investment information reporting system and the reporting path, as well as the penalties of non-compliance. Although the articles emphasized that reporting shall be based on necessity, and no repetitive information shall be required, it is hard to tell from the new FIL how will the two principles will be implemented in practice. Article 35 of the new FIL established the national security review system for foreign investment.

Under this article, the security review shall be conducted for foreign investment that affects or will likely affect the national security of China. Article 35 anchors the national security review system for foreign investment in the law for the first time. Circular 6 has been criticized as too low level in the legal hierarchy, meaning that it can be overridden easily by higher level legal documents. Compared to Circular 6, the national security review mentioned in the new FIL is not limited to mergers and acquisitions made by foreign investment.

Rather, we believe it will apply to all foreign investments defined by Article 2 of the new FIL. In addition, Article 35 explicitly stated that any decision that follows a security review will be final. That is to say, once a decision has been made, the decision cannot be appealed or be reviewed again. The new FIL lays the basis for the national security review for foreign investments, but details such as the scope of the national security review, the bureau in charge, and the review process are still absent.

In a notice released in late April, the National Development and Reform Commission NDRC will take over the responsibility of national security review of foreign investments starting from April 30, Nevertheless, we still expect the bureau in charge and other details regarding national security review of foreign investments would be announced in the forthcoming matching laws.

It specifically seeks to address the principle of equal treatment for foreign and domestic investment, which is echoed among the articles of the FIL. This wording suggests China expects FIEs to operate within the boundary of the current law, rather than get exceptional privileges beyond the law. Article 16 ensures FIEs equal participation of government procurement, which is regarded as a big improvement by relevant observers.

In future legislation, investors that would like to participate in government-led projects should pay close attention to any ratio requirements for local composition in the matching laws for government procurement. Article 22, Article 23 and Article 39 of the new FIL focus on the intellectual property protection issues that concern foreign investors and their investments.

Article 22 stipulates that any infringement upon intellectual property shall be investigated for legal liability according to law. It also clarifies that technical cooperation shall be based on free will and business rules in the process of foreign investment, and that technical cooperation conditions shall be determined by the principle of fairness upon equal negotiation. Article 23 provides that government departments and personnel are not allowed to divulge or illegally provide the trade secrets learned in the course of performing duties to any other third party.

In case of non-compliance, Article 39 provides the legal penalties imposed on government personnel, which could trigger criminal liability if a crime is constituted. These two articles establish general intellectual property protection rules and confidentiality obligations for government departments.

Going forward, we can expect the accelerated amendments to relevant laws regarding intellectual property protection, such as the Patent Law. We can also expect that forced technology transfer in JVs shall be reduced. Article 22 states that government departments and personnel are forbidden to force the transfer of any technology by administrative means. But some analysts believe non-administrative measures might also be used to coerce foreign investors transfer relevant technologies to Chinese parties.

We expect this issue could be further clarified in the later implementation process. Article 26 of the new FIL establishes a compliant mechanism for FIEs to manage problems encountered during the investment process in a timely way. According to Article 26, if a foreign investor or FIE deems that the administrative practice of a government department or its personnel infringes upon its legitimate rights and interests, the foreign investor or FIE can apply for coordination and resolution through the complaint mechanism.

Beyond that, the foreign investor or FIE may also apply for administrative reconsideration or institute an administrative lawsuit to protect its legitimate rights and interests. We expect these will be specified in the matching laws. Article 31 stipulates that the organization form, governing structure, and operating rules of FIEs will be subject to the provisions of the Company Law, the Partnership Enterprise Law, and other applicable laws.

Article 31 and Article 42 clarifies applicable law for foreign investment, which will significantly reduce confusion about the co-existence of the general law and special law, as well as the transition from the old law to the FIL.

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The new FIL defines the bureau in charge of the foreign investment information reporting system and the reporting path, as well as the penalties of non-compliance. Although the articles emphasized that reporting shall be based on necessity, and no repetitive information shall be required, it is hard to tell from the new FIL how will the two principles will be implemented in practice. Article 35 of the new FIL established the national security review system for foreign investment.

Under this article, the security review shall be conducted for foreign investment that affects or will likely affect the national security of China. Article 35 anchors the national security review system for foreign investment in the law for the first time. Circular 6 has been criticized as too low level in the legal hierarchy, meaning that it can be overridden easily by higher level legal documents. Compared to Circular 6, the national security review mentioned in the new FIL is not limited to mergers and acquisitions made by foreign investment.

Rather, we believe it will apply to all foreign investments defined by Article 2 of the new FIL. In addition, Article 35 explicitly stated that any decision that follows a security review will be final. That is to say, once a decision has been made, the decision cannot be appealed or be reviewed again. The new FIL lays the basis for the national security review for foreign investments, but details such as the scope of the national security review, the bureau in charge, and the review process are still absent.

In a notice released in late April, the National Development and Reform Commission NDRC will take over the responsibility of national security review of foreign investments starting from April 30, Nevertheless, we still expect the bureau in charge and other details regarding national security review of foreign investments would be announced in the forthcoming matching laws.

It specifically seeks to address the principle of equal treatment for foreign and domestic investment, which is echoed among the articles of the FIL. This wording suggests China expects FIEs to operate within the boundary of the current law, rather than get exceptional privileges beyond the law.

Article 16 ensures FIEs equal participation of government procurement, which is regarded as a big improvement by relevant observers. In future legislation, investors that would like to participate in government-led projects should pay close attention to any ratio requirements for local composition in the matching laws for government procurement.

Article 22, Article 23 and Article 39 of the new FIL focus on the intellectual property protection issues that concern foreign investors and their investments. Article 22 stipulates that any infringement upon intellectual property shall be investigated for legal liability according to law. It also clarifies that technical cooperation shall be based on free will and business rules in the process of foreign investment, and that technical cooperation conditions shall be determined by the principle of fairness upon equal negotiation.

Article 23 provides that government departments and personnel are not allowed to divulge or illegally provide the trade secrets learned in the course of performing duties to any other third party. In case of non-compliance, Article 39 provides the legal penalties imposed on government personnel, which could trigger criminal liability if a crime is constituted. These two articles establish general intellectual property protection rules and confidentiality obligations for government departments.

Going forward, we can expect the accelerated amendments to relevant laws regarding intellectual property protection, such as the Patent Law. We can also expect that forced technology transfer in JVs shall be reduced. Article 22 states that government departments and personnel are forbidden to force the transfer of any technology by administrative means. But some analysts believe non-administrative measures might also be used to coerce foreign investors transfer relevant technologies to Chinese parties.

We expect this issue could be further clarified in the later implementation process. Article 26 of the new FIL establishes a compliant mechanism for FIEs to manage problems encountered during the investment process in a timely way. According to Article 26, if a foreign investor or FIE deems that the administrative practice of a government department or its personnel infringes upon its legitimate rights and interests, the foreign investor or FIE can apply for coordination and resolution through the complaint mechanism.

Beyond that, the foreign investor or FIE may also apply for administrative reconsideration or institute an administrative lawsuit to protect its legitimate rights and interests. We expect these will be specified in the matching laws. Article 31 stipulates that the organization form, governing structure, and operating rules of FIEs will be subject to the provisions of the Company Law, the Partnership Enterprise Law, and other applicable laws. Article 31 and Article 42 clarifies applicable law for foreign investment, which will significantly reduce confusion about the co-existence of the general law and special law, as well as the transition from the old law to the FIL.

Article 42 provides a five-year transitional period for existing FIEs. This five-year transitional period gives foreign investors more time to arrange relevant transitions to become compliant with the new requirements. But at the same time, it also sets a deadline for FIEs to make timely changes to the current organization forms, governing structure, as well as other operating rules.

In addition, according to EJV law, certain industries — such as service industries — are required to have a term of cooperation. Automation in the professional services segment — the use of information technology to automate basic busine Tax, Accounting and Audit in China offers a comprehensive overview of the major taxes foreign invest The reform will change the law Stay Ahead of the curve in Emerging Asia.

Our subscription service offers regular regulatory updates, including the most recent legal, tax and accounting changes that affect your business. As such, where circumstances warrant, these subsidiaries would be well advised to tap into other local sources of bridge financing for their short terms needs, pending government approval. Our interpretation of the policy does not suggest that any future transfer of Indian assets by Chinese investors will require government approval; except in the case where the transferee is also another Chinese investor.

Accordingly, this new prior approval requirement could become of significance even in the case of intra-group reorganizations. That said, it is clear that by subjecting Chinese investments to case by case approval, the Indian Government is looking to:. Exercise discretion on where such capital will be welcome. For instance, approvals may not be necessarily forthcoming for media businesses, sensitive manufacturing eg pharmaceuticals , but may be open for large scale manufacturing with job creation potential eg electric vehicles.

If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries lexology. Back Forward. Share Facebook Twitter Linked In. Follow Please login to follow content. Register now for your free, tailored, daily legal newsfeed service. China , India April 20

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The law came into effect on January 1 replacing three older laws that regulated foreign companies in China based on how they're structured. With easier market access and greater transparency and protection, foreign investors enjoy the same policies as domestic firms, even participating in standard setting and regulation in relation to foreign investment. Here's a quick recap of some of the most important additions in China's new Foreign Investment Law:.

Even if a foreign company does not set up a physical enterprise in China or acquires a Chinese company — if it simply invests in a project within China's borders, that stake is counted as foreign investment. At its crux, this system provides much greater market access compared to before. To level the playing field, China is offering national treatment of foreign investors at the pre-establishment level, where normally around the world, foreign investment being treated the same as a domestic firm is a benefit offered at the post-establishment stage.

In addition, China has included negative lists for industries that are either prohibited or restricted to foreign investment, which grants much greater market access versus a positive list. Positive lists are usually used by developing countries; while negative lists are usually favored by advanced economies.

Under the new law, however, no government approval is required at the pre-investment stage. Investors can simply register their investments with relevant authorities, thus greatly simplifying the process of doing business in China. For example, technical cooperation involving the intellectual property IP of a foreign investor with a Chinese partner must be undertaken on the basis of free will so that IP cooperation is equal, fair and commercial in manner.

To better illustrate, Article 2 further defines four circumstances that are regarded as foreign investment:. Currently, foreign investment only includes setting up FIEs and investing in projects. Despite the important innovations in this article, many questions remain unsolved. This creates uncertainty as whether an enterprise will be subject to adjustments in the new FIL and other complementary laws.

VIEs are usually used by foreign investors to access the restricted areas under the Negative List, while SPVs are usually used by domestic investors to raise funding overseas and round-trip an investment back to China to take advantage of tax breaks and other benefits awarded to foreign investments. How about foreigners who acquire Chinese permanent residence?

All these questions are expected to be addressed or clarified in the future legislation of the supporting laws. Article 4 and Article 28 of the new FIL clarify that China will adopt the management system of pre-establishment national treatment and Negative List for foreign investment.

The pre-establishment national treatment refers to the principle that will grant foreign investors and their investments market access with no less favorable conditions than what is granted to domestic investors and their investments. The Negative List refers to special administrative measures for foreign investment market access to specific fields.

The government will give national treatment to foreign investments outside the Negative List. The Negative List system has been piloted in the Shanghai Free Trade Zone since and was expanded countrywide in Most significantly, Article 4 and Article 28 clarify that the Negative List will be released by or upon approval by the State Council.

That is to say, neither ministries nor local governments can set restrictions to foreign investment based on their discretion. The articles maintain that foreign investors shall not invest in any field prohibited for foreign investment by the Negative List. For any field restricted by the Negative List, foreign investors shall meet the conditions stipulated under the Negative list. And for the fields not included in the Negative List, foreign investment shall be treated in consistency with domestic investment.

With the new FIL coming into force, the legal basis for this approval will no longer exist, but approval is still listed as one of the conditions for foreign investors to get access to the restricted area. Investors therefore need to pay close attention to how the approval process will be changed under the new management system.

However, foreign investors should pay close attention to the Negative List anyway because it is frequently updated. Article 34 and Article 37 of the new FIL establish a foreign investment information reporting system in China for the management the foreign investment. According to Article 34, foreign investors and FIEs are required to submit relevant information to the commerce department in charge through the Enterprise Registration System or the Enterprise Credit Information Publicity System.

The content and scope of foreign investment information report shall be determined based on necessity. Authorities will not be allowed to request any investment information that can be obtained by interdepartmental information sharing. Article 37 stipulated the penalties of noncompliance. The commerce department in charge shall order the foreign investors or the FIEs to make corrections within a time limit if they fail to report the investment information as required.

The new FIL defines the bureau in charge of the foreign investment information reporting system and the reporting path, as well as the penalties of non-compliance. Although the articles emphasized that reporting shall be based on necessity, and no repetitive information shall be required, it is hard to tell from the new FIL how will the two principles will be implemented in practice. Article 35 of the new FIL established the national security review system for foreign investment.

Under this article, the security review shall be conducted for foreign investment that affects or will likely affect the national security of China. Article 35 anchors the national security review system for foreign investment in the law for the first time. Circular 6 has been criticized as too low level in the legal hierarchy, meaning that it can be overridden easily by higher level legal documents. Compared to Circular 6, the national security review mentioned in the new FIL is not limited to mergers and acquisitions made by foreign investment.

Rather, we believe it will apply to all foreign investments defined by Article 2 of the new FIL. In addition, Article 35 explicitly stated that any decision that follows a security review will be final. That is to say, once a decision has been made, the decision cannot be appealed or be reviewed again. The new FIL lays the basis for the national security review for foreign investments, but details such as the scope of the national security review, the bureau in charge, and the review process are still absent.

In a notice released in late April, the National Development and Reform Commission NDRC will take over the responsibility of national security review of foreign investments starting from April 30, Nevertheless, we still expect the bureau in charge and other details regarding national security review of foreign investments would be announced in the forthcoming matching laws. It specifically seeks to address the principle of equal treatment for foreign and domestic investment, which is echoed among the articles of the FIL.

This wording suggests China expects FIEs to operate within the boundary of the current law, rather than get exceptional privileges beyond the law. Article 16 ensures FIEs equal participation of government procurement, which is regarded as a big improvement by relevant observers.

In future legislation, investors that would like to participate in government-led projects should pay close attention to any ratio requirements for local composition in the matching laws for government procurement.

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