For the record: China's foreign investment regime enters a new phase

Transcription

1 For the record: China's foreign investment regime enters a new phase September 2016

2 2 Hogan Lovells For the record: China's foreign investment regime enters a new phase Overview and background On 3 September 2016, the Standing Committee of the National People's Congress adopted the Decision on Amending Four Laws Including the People's Republic of China Wholly Foreignowned Enterprise Law ("NPC Decision"), amending the relevant provisions concerning administrative approvals under the People's Republic of China Wholly Foreign-owned Enterprise Law ("WFOE Law"), the People's Republic of China Sino-foreign Equity Joint Venture Enterprise Law ("EJV Law"), the People's Republic of China Sino-foreign Cooperative Joint Venture Enterprise Law ("CJV Law") and the People's Republic of China Taiwanese Compatriot Investment Protection Law ("Taiwanese Investment Law", and together with the WFOE Law, the EJV Law, the CJV Law and the Taiwanese Investment Law, the "Four FDI Laws"). On the same day, the Ministry of Commerce ("MOFCOM") issued the Establishment of, and Changes, to Foreign-Invested Enterprises Record-Filing Interim Administrative Measures (Draft for Comments) ("Interim Measures") to seek comments on the proposed specific record filing procedures for foreign-invested enterprises ("FIEs"). The NPC Decision will come into force on 1 October 2016, which means that although the Interim Measures are currently only in draft form, this is not a reform that may or may not happen. The die is cast and the sea-change that the new regime will bring about in the China foreign direct investment ("FDI") regulatory framework is only a matter of "when", not "if." Although no official news or documents have been released in relation to the effective date of the Interim Measures, we understand that the Interim Measures are likely to become effective at the same time as the NPC Decision: a logical proposition given that the NPC Decision provides no implementation detail or guidance to officials enforcing it. What is the fuss all about? In short order, China is replacing the administrative approval-driven foreign investment market access system for FDI which has been in place since China's opening up to the outside world in the 1980's with an administrative system adopting a negative list administration model, where FDI in only the most sensitive sectors requires approval going forward: all other sectors will be subject to record filing. Key points of the decision The NPC Decision amends the provisions concerning administrative approvals under the Four FDI Laws by replacing examination and approval requirements for the establishment of, and changes to, FIEs (including, for these purposes Taiwan-invested enterprises) not subject to "special administrative market access restrictions" imposed by the State with a record filing based administrative system, as summarised in the table below: Law WFOE Law EJV Law CJV Law Taiwanese Investment Law Amended Provisions Article 6 (establishment); Article 10 (divisions, mergers or changes to major matters); Article 20 (term of Article 3 (joint venture contract and articles of association); Article 13 (extension to the term of operation for a Sino-foreign Article 5 (joint venture contract and articles of association); Article 7 (major amendments to the joint venture Article 8 (1) (establishment)

3 For the record: China's foreign investment regime enters a new phase September Law WFOE Law EJV Law CJV Law Taiwanese Investment Law operations and extension) equity joint venture ("EJV")); Article 14 (termination of joint venture contract) contract); Article 10 (transfer of rights and obligations under the joint venture contract); Article 12(2) (contracting out operations of the a Sino-foreign cooperative joint venture ("CJV") to a third party); Article 24 (extension to the term operation) Key points of the interim measures Scope of application The Interim Measures apply to the establishment of, and changes in relation to, FIEs not subject to special market access administrative restrictions imposed by the State (i.e. FIEs in areas not covered by the to-be-issued negative list ("Negative List")) ("Non Negative List FIEs"), including FIEs with an investment nature ( 外商投资的投资性公司 ), foreign invested venture capital enterprises ( 外商投资的创业投资企业 ), foreign invested equity investment enterprises ( 外商投资的股权投资企业 ) and companies invested in by overseas Chinese compatriots i.e. investors from the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan. Particulars to be record filed (1) Enterprise Establishment Record Filing Non-Negative List FIEs will henceforth be established by record filing with MOFCOM or its authorised local entity either: prior to the issuance of the business license; or within 30 days of the issuance of the business license. Conceptually this is the first time in the post-opening up to the outside world era where the idea of 'establish first, get approval later' has been posited in relation to FDI in China. Of course we have to see the length and breadth of the new Negative List to make any determination as to how significant the reform is likely to be, and there is likely to be a running-in period (which we are hearing about already in relation to FDI-related applications being filed now) where officials will 'sit' on applications or delay

4 4 Hogan Lovells granting record filing while they await further guidance (or try to absorb what it means). (2) Enterprise Change Record Filing The events triggering a record filing for a Non-Negative List FIE include: changes to the basic information of the FIE and its investors, including changes to the ultimate de facto controller of the FIE changes to equity interests (or shares) or cooperative rights and interests, including pledges of equity interests mergers, divisions or termination mortgages or assignments to third parties of rights and interests in the assets of the FIE the early recovery of investment by a party to a CJV, and a CJV contracting out its operations and management to another entity (which currently requires a unanimous board resolution). The above-mentioned changes must be record filed with MOFCOM within 30 days of the date on which the changes occurred. Except where otherwise provided under PRC law, the time at which a change to the particulars of an FIE occurs is deemed to the time at which the highest authority within such enterprise resolves or decides to make such change. This is highly significant, essentially removing the issue of determining when a change in equity interests in an FIE is legally effective which previously depended on the reading of a provision in the Change in Equity Interests in Foreign-invested Enterprises Several Provisions ( "Change in Equity Provisions"), but was, in any event, a somewhat sterile debate between whether transfer of title occurred on MOFCOM approval of the transfer or on Administration of Industry and Commerce ("AIC") registration. Now the Board (in the case of CJVs and EJVs) and the shareholder meeting (in the case of wholly foreign-owned enterprises ("WFOEs")) not a government authority over which investors exercise no control will determine when a transfer is effective, putting power and control back in the hands of the parties. What is less clear is what happens where in the case of an EJV the Board of Directions approves but record filing is refused presumably the Board would have to resolve again to disapprove the underlying transaction. The Interim Measures includes important transitional provisions for the FIEs approved under the exiting regime. An FIE which has been approved for establishment prior to the implementation of the Interim Measures and which falls within the applicable scope of the Interim Measures henceforth only needs to carry out record filing procedures where a change caught by the new rules under the Interim Measures takes place with respect to it. The Foreign-Invested Enterprise Approval Certificate of such FIE will remain effective until the completion of such record-filing. Filing procedures An FIE may complete the enterprise establishment record filing and enterprise change record filing procedures via the online foreign investment integrated management information system (the "Record Filing System"), again a move away from the traditional paper-based application system.

5 For the record: China's foreign investment regime enters a new phase September MOFCOM will conduct a review of the submitted information in terms of completeness and accuracy, and complete record filing within 3 business days. MOFCOM will announce the record filing outcome via the Record Filing System and inform the FIE or its investors of the same online. Upon receiving notice of completion of record filing, the FIE or its investors may collect a Record Filing Receipt for the Establishment of a Foreign-Invested Enterprise or Record Filing Receipt for Changes to a Foreign-Invested Enterprise. Administrative supervision Although the approval-based administrative system will be abolished by the combination of the NPC Decision and the Interim Measures, foreign investors should not take this as a message that they are being 'let off the hook' in terms of compliance: the Interim Measures provide that MOFCOM will tighten up post-investment supervision by conducting regular random inspections, inspections on the basis of reports of wrongdoing (whistleblowing), inspections on the basis of a recommendation or reports by the relevant authorities or judicial organs, as well as other ex officio inspections, in relation to FIEs or their investors, with regard to determining whether or not: the record filing procedures were carried out in accordance with the Interim Measures the record filing information submitted by the FIE or its investors was true, accurate and complete the FIE is engaging in investment or business activities in sectors where foreign investment is prohibited ("Prohibited Sectors") as specified by specific market access administrative measures pertaining to foreign investment (i.e. the Negative List) the FIE is engaging in investment or business activities in sectors where foreign investment is restricted ("Restricted Sectors") as specified in specific market access administrative measures pertaining to foreign investment without approval circumstances which would trigger a national security review exist, and/or the FIE has complied with the administrative penalty decision(s) of the record filing authorities. Legal liability Where an FIE or its investors fail to duly perform or complete its/their record filing obligations, or engages in investment or business activities in Restricted Sectors under the Negative List without approval, or in Prohibited Sectors, or refuse to cooperation with MOFCOM's supervision, administrative penalties (including a fine) may be imposed. Major tasks related to the implementation of the decision and interim measures Need for a single nationwide Negative List The Interim Measures are only part of the picture in terms of the new regime: they point to the fact that there is an urgent need for a single nationwide Negative List for defining what projects fall into Restricted Sectors or Prohibited Sectors. The Interim Measures specify that the Record Filing System applies to the establishment of, and changes to FIEs not subject to the specific market access administrative restrictions imposed by the State, i.e., not included in the Negative List. However, no timetable has been released for

6 6 Hogan Lovells producing and promulgating a nationwide negative list, which makes the Interim Measures something of an empty shell for the moment. The pan-free Trade Zone ("FTZ") Negative List adopted in the FTZs in Shanghai, Tianjin, Guangdong and Fujian (the "Pan-FTZ Negative List") includes 122 items subject to special administrative measures. We understand that the nationwide Negative List should be based on the Pan-FTZ Negative List currently adopted in the four pilot FTZs, and should not deviate substantially from the Guidance Catalogue for Foreign Investment Industries currently in effect which forms the basis for the current sector classification used in the existing approval-based FDI regime. Convergence and coordination with the examination, approval, registration and record-filing work of other government authorities needs to be resolved The NPC Decision and the Interim Measures will abolish the approval-based administrative system in relation to FIEs. However, the project based approval administrative model adopted by the National Development and Reform Commission ("NDRC") under the Verification and Approval and the Record Filing of Foreign Investment Projects Administrative Measures is still in effect, and remains a preliminary requirement for the establishment of an FIE on the face of the law. This means that despite the fact that FIEs do not need to submit the MOFCOM official approval reply on establishment when registering with the AIC, they still need to submit the NDRC project record filing or approval document, which is a further administrative burden on foreign investors. We can only hope that the NDRC's ahead of time record filing system will also be adjusted accordingly so as to facilitate foreign investment given the 'regime change', but past experience and the previous 'turf war' between NDRC and MOFCOM over approval rights in relation to FIE establishment and subsequent changes leave little grounds for optimism in this regard. As for FIE establishment, the Interim Measures permit pre- and post-event record filing; yet, in practice, if an FIE intends to carry out post-establishment/event record filing, will the AIC really allow the investor to register the FIE's establishment without the comfort of seeing establishment/change record filing documents issued by MOFCOM? In the case of an FIE which intends to record file with MOFCOM after its establishment, could the AIC determine on its own whether such FIE is subject to special market access administrative measures (the Negative List) without having undergone a review by MOFCOM? This seems to put a quite heavy burden on AICs which in practice they may not wish to shoulder. Without amendments to the AIC requirements in relation to the establishment of FIEs, the implementation of the post-establishment record filing system may not work in practice. Hopefully these are in the works and will follow shortly. Under the current FDI regime, the approval documents issued by MOFCOM are important evidential documents to convince the State Administration of Foreign Exchange ("SAFE") or, in more recent practice, given that SAFE has delegated many of its approval rights in relation to certain foreign exchange matters to the banks, a bank in China to allow conversion of the incoming foreign exchange capital contributions. It will be a major challenge for SAFE and its designated banks to adapt to the implementation of the post-establishment record filing system by the MOFCOM. Again we hope and assume implementing legislation is just over the horizon. Other foreign invested-related regulations need to be amended accordingly The NPC Decision only amends certain provisions under the Four FDI Laws on approvals. Other FDI related provisions, including, for example, the implementing regulations/ rules for the WFOE Law, EJV Law and CJV Law, the Change in Equity Provisions which govern, amongst other things, the transfer of equity interests in FIEs, mergers and divisions of FIEs, and capital contributions using equity interests by FIEs, need to be amended and conformed as part of the overall "regime change" as well. In addition, the Interim Measures do not specify the outcome when there is any

7 For the record: China's foreign investment regime enters a new phase September inconsistency between the Interim Measures and other existing foreign-investment-related rules and regulations. In short, a lot of the detail remains to be worked out. Do the new rules apply to other foreign investment scenarios? The Interim Measures do not specify whether the Record Filing System and Negative List approach will also apply under the following circumstances: a foreign investor merges with or acquires a domestic capital enterprise reinvestments in China by FIEs strategic investments in listed companies by foreign investors which have, until now, come under the MOFCOM approval-based administrative system. Conclusions While the NPC Decision and the Interim Measures are perhaps not quite as potentially 'gamechanging' as the yet-to-be promulgated People's Republic of China Foreign Investment Law in terms of regulation of FDI, this is still a significant and overall positive change with regard to China's foreign investment regulatory regime and brings China much closer to the FDI regimes in more developed economies. It is also consistent with the recent trend in China where approval and administrative licensing has increasingly been reserved for the most critical or sensitive sectors only, and not automatically required (as was the case in the past). On the other hand, implementation of the record-filing system still has a long way to go, with numerous details and issues still to be worked out and the' million dollar question' of what goes into the new Negative List still to be clarified. Foreign investors will need to be patient while the new regime beds down and there are likely to be some 'bumps in the road'. Already filing agents are asking us whether it makes sense to file to establish FIEs before the 1 October 2016 cut-off date, as having MOFCOM approval under the old regime followed by AIC record filing under the new regime is likely to be slow and messy. A lot more needs to be done to ensure the entire legislative framework is conformed and fit for purpose by 1 October 2016 and officials are given the guidance they need to implement the new regime, and there is precious little time left in which to achieve this. Contacts Jun Wei Partner, Beijing jun.wei@hoganlovells.com Liang Xu Partner, Beijing liang.xu@hoganlovells.com Andrew McGingty Partner, Shanghai andrew.mcginty@hoganlovells.com Philip Cheng Partner, Shanghai philip.cheng@hoganlovells.com Phoebe Zhang Associate, Shanghai phoebe.zhang@hoganlovells.com Wei Song Associate, Shanghai wei.song@hoganlovells.com

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