Excerpt
Table of Contents
List of abbreviations
1. Introduction
1.1 Research question
1.2 Methodology
1.3 Structure
2. The foreign investment framework of China
2.1 Existing issues identified in relation to market access and transparency
2.1.1 Pre-approval system
2.1.2 Protection against expropriatory measures
2.1.3 Variable interest entities
3. Analysis of the Draft Foreign Investment Law of China
3.1 Changes proposed by the draft foreign investment of china
3.1.1 The pre-approval system
3.1.2 Protection against expropriatory measures
3.1.3 Variable interest entities
4. Analysis on whether the changes address the existing legal issues
4.1 The pre-approval system
4.2 Protection against expropriatory measures
4.3 Variable interest entities
5. Conclusion
6. List of sources
6.1 Legislation
6.2 Books
6.3 Articles
6.4 Other sources
List of abbreviations
illustration not visible in this excerpt
1. Introduction
International investment law governs the concept of foreign direct investment (“FDI”) alongside with the dispute resolution mechanisms between foreign investors and states. The standard definition of FDI entails carrying out an economic activity in another country with the purpose of exercising control.[1] Such an economic activity can be carried out through the opening of a company or a subsidiary within the host country’s market and thus acquiring a role in international business. The creation of a portfolio is also considered a form of investing. The latter involves less control exercised by the investor but it still represents a means of economically expanding your business.
It has been proven that, from an economical point of view, investments have a critical effect on a market and especially on a developing country’s market.[2] According to the reports of the United Nations Conference on Trade and Development,[3] FDI has increased to approximately $566 billion per year in developed countries while in the developing ones the numbers have reached a staggering amount of $553 billion.
Investment policies and FDI in China can be said to have represented one of the most important elements that substantially developed the country’s economy. Two examples of such choices as regards policy making and FDI, which led to embracing openness as regards the gradual liberalization of restrictions within the legal system of China, are presented below.
First, China has maintained for more than seven years a low average corporate income tax rate of 25% that has been considered competitive for attracting foreign and domestic investment alike.[4] Such a statement can be supported through a review of the empirical research on this issue, in which it was concluded that the “econometric work of the last fifteen years provides ample evidence of the sensitivity of the level and location of FDI to its tax treatment”.[5] In addition to this, certain industries and companies may have a lower corporate tax rate such as 15% which is permitted through the Tax Circular No. 26.[6]
Second, tax incentives are not the only ones that investors are seeking out when planning to expand their businesses in China. As empirical studies have shown in general,[7] key determinants of FDI such as cost and availability of labour, reasonable infrastructure and last but not least, economic and political stability are also considered. As regards China’s location determinants of FDI, there are studies that support the existence of the following factors: good infrastructure, openness, low labour costs and market demand and labour quality.[8] Therefore, an investor is likely to take the above mentioned factors into consideration and is likely to choose China for his future investment since it largely fulfils the criteria set above.
Consequently, China is seen as a profitable business environment that has readily available an abundance of investment products and vehicles for interested investors. It can be considered to have reached an overall competitive investment climate that has increased from $100 billion in 2008 to $120 billion in 2014.[9]
As regards the investment climate in China, the system is a dual regulatory framework in which foreign investment is separate from domestic since it is governed by completely different provisions and foreign investors may only invest where they are allowed by specific laws and regulations. For the purposes of the present bachelor thesis, the term foreign investment will be deemed to include commercial loans, official flows, FDI and foreign portfolio investment.
The foreign investment structure currently in place provides for multiple pieces of laws and regulations that come together in order to outline a complex legal mechanism. First, the Catalogue of Industries for Guiding Foreign Investment[10] is an instrument which classifies the industries as being encouraged", "permitted", "restricted" and "prohibited". The catalogue has an important role in the process of pre-approval due to the fact that investors first need to analyse its content and afterwards to initiate the pre-approval process. Second, the pre-approval system which is represented by a review made on a case-by-case basis on investment projects for FDI into China. Such a review is executed through assessment procedures carried out by authorized governmental agencies which ultimately will decide whether the foreign investor will be given approval. And last but not least, the laws in connection to foreign investment which are the Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures (“EJVL”),[11] the Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures (“CJVL”),[12] the Law of the People's Republic of China on Wholly Foreign-Owned Enterprises (“WFEL”)[13] and the Company Law.[14] These laws govern different legal entities that are available to investors who had their investment proposals accepted in the review procedure of the pre-approval process. In other words, all foreign investors are obliged by law to obtain approval for their investment according to the pre-approval regime and only after this step has been completed they are allowed to establish a company of their choosing.[15]
The current pre-approval regime, the catalogue and the above-mentioned laws on foreign investment have subsequently led to the creation of a legal system that is considered a complicated web of laws and regulations.[16] Steve Dickinson states that the existing regulations “are completely out of touch with the reality of foreign business operations in China now” and that “they’ve really become completely dysfunctional”.[17] In addition, John Frisbie, president of the US-China Business Council (“USCBC”) has said that “China can be a complicated and frustrating place to do business, for companies and for government trade policy negotiators”.[18]
First, as regards to the pre-approval system, there is a possibility that foreign investors are encumbered in their attempt to access to the Chinese market. This can be done though the wide discretion offered to governmental agencies that have the authority to review the process of investment[19] and also by a lack of effective recourse.[20] Such a situation can lead to a lack of transparency and potentially lower the likelihood of an investor having his investment accepted into the industry of his choosing. Therefore, the system is seen as a “complicated and ambiguous foreign investment approval process”[21] which is likely to give rise to legal issues as regards the discretion offered to government administrators when reviewing the pre-approval of investment projects and the options for appeal process.
Second, as regards the basic laws of foreign investment, the EJVL, the CJVL, the WFEL and the Company Law, a possible legal issue which foreign investors may encounter when attempting to access the Chinese market is the fact that not all laws contain provisions regarding protection against expropriatory measures. The CJVL and the Company Law contain no articles that make reference to nationalization or expropriation protection. Therefore, a possible scenario may exist in which an investor, who has decided to choose as an investment vehicle a contractual joint venture under the CJVL or a limited liability or stock company regulated under the Company Law, is lacking protection as regards his investment. Since the protection can be decisive for an investor, when ultimately deciding whether to invest in a certain country or not, it can be considered as a factor closely tied with market access. As a result, “foreign investors complain of legal and regulatory playing fields that are tilted – in many accounts increasingly so – against them and in favour of Chinese competitors”.[22]
Last but not least, the variable interest entities (“VIES”) are investment vehicles which are not covered by the current Chinese investment laws since they do not employ the legal and pre-established procedure of market access. The procedure consists of analysing of the catalogue and the start-up of the pre-approval process in accordance with Chinese legislation. It can be affirmed therefore, that foreign investors make use of the VIES in order to invest in industries where otherwise only domestic investors are allowed. This opinion is supported by Attorney Steve Dickinson who believes that VIES have the sole function of evading the requirements of Chinese law.[23] Also, Attorney You Yunting is of the opinion that the Chinese “government neither gives up its authority or power to regulate this issue, nor recognizes the legitimacy of VIE structure”.[24] Since the views on VIES have mainly the reputation of existing only within a legal loophole and being tolerated, any changes on the existing regulations may have a severe impact on the market.[25]
Considering all the above arguments as regards access to the Chinese market, there are three main topics in connection to legal issues that will be presented in the bachelor thesis:
- the pre-approval system,
- protection against expropriatory measures
- and the variable interest entities;
The research question of the present thesis is the following: “Market access for foreign investors in China: Are the three identified legal issues pertaining to the current framework addressed through the proposed changes of the Draft Foreign Investment Law?”
Due to fact that the thesis is limited in the number of words, the above three legal issues that have been identified within the current market access structure with regards foreign investment will be the main focus of the following document.
As previously mentioned, the present bachelor thesis aims to analyse whether the proposed changes of the DFIL address the existing legal issues identified above within the current market access structure. The DFIL is a piece of legislation that was introduced on the 19th of January 2015 and which contains 170 Articles and 11 Chapters. It proposes a comprehensive and different approach to the regulation of inbound foreign investment in China. The aims of the DFIL are mainly focused on reducing the barriers to foreign investment, easing the procedure of investment as a whole and last but not least increasing scrutiny on foreign investors who wish to evade the laws and regulations in place as regards restricted and prohibited industries. Most of the laws on foreign investment i.e. the CJVL, the EJVL, the WFEL will be repealed in order for the DFIL to enter into force in China.[26] The Company Law will still be in force since the DFIL makes no specific reference to it however, it remains unclear about the exact manner in which both pieces of legislation will function together since their scope of application overlaps. The DFIL applies to “investments within the territory of China made by foreign investors”[27] and the Company Law applies to “to limited liability companies and joint stock limited companies with foreign investment”.[28]
The DFIL is possibly a piece of legislation that can represent a significant milestone for China’s investment environment but the implications could go even further. Its final purpose is to merge the legal and regulatory systems both for foreign and Chinese-owned economies and thus to unify their status under the same regime.
There is an increasing need of “rationalizing China’s foreign investment regulatory regime in line with prevailing international practice”[29] and this is the ultimate role of the DFIL and the changes that it proposes.
1.1 Research question
The present thesis will focus on presenting the current investment laws applicable in China and then subsequently on identifying and analysing the issues found within the market access system and whether these legal issues are addressed through the proposed DFIL provisions. As a result, the research question that will be answered is the following: “Market access for foreign investors in China: Are the three identified legal issues pertaining to the current framework addressed through the proposed changes of the Draft Foreign Investment Law?”
1.2 Methodology
The main research methodology chosen is the doctrinal research. In the selection of appropriate sources, the focus will be on primary and secondary sources of international law i.e. books, articles and legislation that will illustrate the current situation in the investment climate within China. As regards the Draft Foreign Investment Law of China, more than one English translation offered by esteemed law professors and law firms will be consulted.[30]
In order to complete this thesis, a limited number of aspects will be addressed as regards the changes that the Draft Foreign Investment Law of China contains. As previously stated, these changes are related to market access and transparency and they are the following: the pre-approval system, nationalisation and compensation protection and the variable interest entities.
1.3 Structure
Following the present chapter which contained the introduction of the thesis alongside with the research question, methodology and structure, chapter two will be comprised of an overview of the foreign investment framework and of the existing issues identified in relation to market access in China.
Chapter three will contain an analysis of the Draft Foreign Investment Law of China and also the future legislative changes that are likely to affect China’s investment perspectives as regards access to market and transparency.
Chapter four presents an analysis on whether the changes proposed by the DFIL address the three issues identified within the foreign investment market access of China.
As a short summary, the present bachelor thesis will analyse the basic research question through relevant sources and will present the legal issues of the Chinese market access and the corresponding changes of the DFIL that seek to address the situation.
2. The foreign investment framework of China
Within the Chinese legal system, national laws and regulations in connection to market access in the investment field, or in other words related to Foreign Investment Enterprises (“FIES”), are fragmented to a large extent. However, the essential process that investors need to be aware of is represented by the following steps:
- Step 1: The applicant is reviewed under Anti-monopoly laws (if applicable)[31] and under national security laws (if applicable)[32]
- Step 2: Name pre-approval Administration for Industry and Commerce (“AICs”)[33]
- Step 3: Pre-approval of land-use rights, environmental impact assessment, zoning opinion on planned location, approval for the use of state assets or state-owned land-use rights (if applicable)[34]
- Step 4: Approval of Project Proposal (“DRCs”)[35]
- Step 5: Approval of related contracts, Articles of Association and formation of FIEs[36]
- Step 6: Pre-approval license from industry regulator (if applicable)[37]
- Step 7: Registration of enterprise (AICs)[38]
These seven steps which together represent the legal framework as regards market access in China can be employed by a foreign investor together with the Chinese partner/partners (if applicable) after drafting a letter of intent and or a cooperation agreement.
The steps illustrated above are relatively straightforward, nevertheless a survey made in 2014 amongst European Union (“EU”) companies revealed that approximately 45% of EU companies that operate in China or were planning to operate believe that they have wasted important business opportunities due to difficult market access requirements and other regulatory barriers.[39] Also, the American Chamber of Commerce in the People's Republic of China has reported deterioration in the quality of China’s investment environment in the 2015 Business climate survey.[40]
In order to be able to employ the seven steps (if all are applicable to a given case), an investor should be aware of the laws and regulations that govern these steps. The general approval process for inbound FDI consists of the Catalogue of Industries for Guiding Foreign Investment, the pre-approval process and the basic laws that govern foreign investment vehicles.
The Guiding Catalogue takes precedence over the actual pre-approval process due to the fact that it represents policy guidance for all foreign investment in China.[41] According to the catalogue, all potential foreign investors need to first carefully review and analyse the industries available to them and also to pay close attention to other related laws, regulations and policies in order to take a comprehensive decision based on a thorough understanding of Chinese foreign direct investment market access policies. As regards the division of the industries within the catalogue, the categories are extremely relevant to which governmental approval will be necessary. Currently, the catalogue contains the "encouraged", "permitted", "restricted" and "prohibited" labels.
After a carefully taken decision as regards to the industry of his choosing, an investor needs to start Step 4 of the process (assuming that the formalities in Steps 1, 2 and 3 have been taken care of, if applicable). The pre-approval system represents the screening of FDI or in other words the approval of a project proposal and is a general approval process that functions on a “case-by-case” basis. This means that there are filing procedures that need to be respected and also ultimately governmental approval is needed for any foreign investors who wish to invest in China.[42]
Steps 5, 6 and 7 (if Step 6 is applicable) are governed by the provisions of the EJVL, or the CJVL, or the WFEL or the Company Law.[43]
The EJVL contains provisions under which an equity joint venture may be formed as a Chinese legal person with limited liability. This procedure is established on the basis of a joint venture contract between foreign and Chinese parties after it has received approval from the relevant authorities. Equity joint ventures are mostly governed by the EJVL according to Article 1 and 2 but also governed by the Company Law Article 2.[44]
The CJVL contains provisions under which a cooperative joint venture can be established on the basis of a joint venture contract. Another term used for cooperative joint venture is contractual joint venture. Such an investment vehicle is governed by the CJVL and also by the Company Law in the case in which the company has a limited liability structure. It is also possible for investors to opt for an unlimited liability option, case in which no legal person is created.
The WFEL contains provisions under which a wholly-foreign owned enterprise can be established. This investment vehicle may take the form of a limited liability company or upon prior approval other forms. In the case of a limited liability company, the enterprise is governed by the WFEL and also by the Company Law provisions.
The Company Law governs foreign invested limited liability and stock companies.[45] Due to its broad scope of applicability it overlaps with the provisions of the other foreign investment laws as stated above. However, Article 218 states that “where laws on foreign investments provide otherwise, the provisions there shall be applicable” meaning that the EJVL, the CJVL and the WFEL have the status of lex specialis in comparison to the Company Law.[46]
[...]
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[2] L Alfaro, A Chanda, S Kalemni-Ozcan and S Sayek, ‘How Does Foreign Direct Investment Promote Economic Growth? Exploring the Effects of Financial Markets on Linkages’ (August 2006) Working Paper
[3] United Nations Conference on Trade and Development, ‘Investing in the SDGs: An Action Plan’ (2014) World Investment Report Ed. 14.II.D.1
[4] KPMG, Corporate Tax Rates Table – China < http://www.kpmg.com/global/en/services/tax/tax-tools-and-resources/pages/corporate-tax-rates-table.aspx> last accessed at 20.10.2015
[5] Gordon and Hines, ‘Paper on International Taxation’ (2002) NBER Working Paper No. w8854
[6] Ministry of Finance China and State Administration of Taxation China CaiShui No. 26 (effective from 1st January 2014 to 31st December 2020)
[7] OECD ‘Tax effects on foreign direct investment’ (2007) Executive summary No. 17; J Morisset, ‘Using Tax Incentives to Attract Foreign Direct Investment’ (2003) World Bank Journal Tax Incentives <https://openknowledge.worldbank.org/handle/10986/11325> last accessed at 20.10.2015
[8] S Tang, E A Selvanathan and S Selvanathan, China’s Economic Miracle: Does FDI matter? ( EEPL, United Kingdom 2012) 64
[9] Wold Bank Statistics, Foreign direct investment and net inflows (% of GDP) <http://data.worldbank.org/indicator/BX.KLT.DINV.WD.GD.ZS> last accessed at 15.11.2015; Rhodium Group, ‘EU-China FDI Monitor’ (2014) 3Q4Q (part of China Observatory Project and produced for the European Commission) 2
[10] National Development and Reform Commission, and the Ministry of Commerce, “Catalogue of Industries for Guiding Foreign Investment 2015 Revision” (published March 13th 2015, effective starting with April 10th 2015)
[11] National People's Congress, Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures (adopted in 1979, revised in 2001) State Council, Order No. 311 English translation < http://www.china.org.cn/english/DAT/214773.htm> last accessed at 05.10.2015
[12] National People's Congress, Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures ( adopted in 1988, revised in 2000) Standing Committee of the National People’s Congress, Order No. 40 English translation < http://www.china.org.cn/english/government/207087.htm> last accessed at 05.10.2015
[13] National People's Congress, Law of the People's Republic of China on Wholly Foreign-Owned Enterprises ( adopted in 1986, revised in 2000) Standing Committee of the National People’s Congress, Order No. 41 English translation <http://www.lehmanlaw.com/resource-centre/laws-and-regulations/foreign-investment/law-of-the-peoples-republic-of-china-on-wholly-foreign-owned-enterprises-2000.html> last accessed at 05.10.2015
[14] Art 218, The Company Law of the People’s Republic of China (adopted in October 27, 2005, effective since January 1, 2006), English translation < http://www.fdi.gov.cn/ltlaw/lawinfodisp.jsp?id=ABC00000000000011567> last accessed at 01.10.2015
[15] Decision of the State Council on Investment System Reform, Catalogue of Investment Projects Ratified by the Governments (2004) State Council, Order No. 20, s 12
[16] C Russell and G Barber, ‘Rules of the Game: Changes in China’s Foreign Investment Law’ [2015] < <http://knowledge.ckgsb.edu.cn/2015/06/25/finance-and-investment/rules-of-the-game-changes-in-chinas-foreign-investment-law/>last accessed at 20.10.2015
[17] Ibid
[18] B Baden, ‘40 Years of US-China Commercial Relations’ [2013] China Business Review, 13-17
[19] Interim Administrative Measures for the Verification and Approval of Foreign Investment Projects (2004) National Development and Reform Commission, No. 22, Ch 3, Art. 6, ss 4-6
[20] Art. 38, Administrative Licensing Law of the People’s Republic of China (2004) Standing Committee of the National People’s Congress, Order No. 7; Art. 6 (8) Administrative Reconsideration Law of the People’s Republic of China (1999) Standing Committee of the National People’s Congress, Order No. 16
[21] R Collins and C Block, Doing Business in China for Dummies (Wiley Publishing, U.S.A. 2007) 133
[22] W A Joseph (ed), Politics in China: An Introduction (2nd Ed. OUP, U.S.A. 2014)
[23] S Dickinson, ‘China VIEs are dead’ (2015) <http://www.chinalawblog.com/2015/01/china-vies-are-dead-done-over-stick-a-fork-in-them.html> last accessed at 23.10.2015
[24] Y Yunting, ‘Will China New Foreign Investment Law Wipe Out VIE Structure?’ (2015) <http://www.chinaiplawyer.com/will-china-new-foreign-investment-law-wipe-vie-structure/> last accessed at 23.10.2015
[25] G C Chow and D H Perkins (eds), Routledge Handbook of the Chinese Economy (Routledge, New York 2015) 268
[26] Art 170, Draft Foreign Investment Law of China translated by Jones Day < https://www.uschina.org/china-hub/english-translation-draft-foreign-investment-law> last accessed at 20.10.2015
[27] Art 2, Draft Foreign Investment Law of China translated by Jones Day < https://www.uschina.org/china-hub/english-translation-draft-foreign-investment-law> last accessed at 20.10.2015
[28] Art 218, The Company Law of the People’s Republic of China (adopted in October 27, 2005, effective as of January 1, 2006) English translation < http://www.fdi.gov.cn/ltlaw/lawinfodisp.jsp?id=ABC00000000000011567> last accessed at 01.10.2015
[29] C W Betts, ‘China's MOFCOM Aims to Fundamentally Change the Legal Landscape on Foreign Investments’ (2015) <https://www.skadden.com/insights/chinas-mofcom-aims-to-fundamentally-change-the-legal-landscape-on-foreign-investments> last accessed at 20.10.2015
[30] Draft Foreign Investment Law of China translated by Jones Day < https://www.uschina.org/china-hub/english-translation-draft-foreign-investment-law> last accessed at 20.10.2015
[31] Art. 20, Anti-Monopoly Law of the People’s Republic of China (2008) Standing Committee of the National People’s Congress, Order No. 68
[32] Notice of the General Office of the State Council on Launching the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (2011) General Office of the State Council Order No. 6, s 1; Art. 31, Anti-Monopoly Law of the People’s Republic of China (2008) Standing Committee of the National People’s Congress, Order No. 68
[33] Arts 6-9 and 17-19, Regulations of the People’s Republic of China on Registration Administration of Companies (2005) State Council, No. 451
[34] Interim Administrative Measures for the Verification and Approval of Foreign Investment Projects (2004) National Development and Reform Commission, No. 22, Ch 3, Art. 6, ss 4-6
[35] Decision of the State Council on Investment System Reform, Catalogue of Investment Projects Ratified by the Governments (2004) State Council, Order No. 20, s 12
[36] Art. 12, Provisions Guiding Foreign Investment Direction (2002) State Council, Order No. 346; Decision of the State Council on Investment System Reform, Catalogue of Investment Projects Ratified by the Governments (2004) State Council, Order No. 20, s 12
[37] Art. 22, Regulations of the People’s Republic of China on Registration Administration of Companies (2005) State Council, No. 451
[38] National People's Congress, Law of the People's Republic of China on Wholly Foreign-Owned Enterprises ( adopted in 1986, revised in 2000) Standing Committee of the National People’s Congress, Order No. 41 English translation <http://www.lehmanlaw.com/resource-centre/laws-and-regulations/foreign-investment/law-of-the-peoples-republic-of-china-on-wholly-foreign-owned-enterprises-2000.html> last accessed at 05.10.2015; National People's Congress, Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures (adopted in 1979, revised in 2001) State Council, Order No. 311 English translation < http://www.china.org.cn/english/DAT/214773.htm> last accessed at 05.10.2015; National People's Congress, Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures ( adopted in 1988, revised in 2000) Standing Committee of the National People’s Congress, Order No. 40 English translation < http://www.china.org.cn/english/government/207087.htm> last accessed at 05.10.2015; Art. 6 Regulations of the People’s Republic of China on Registration Administration of Companies (2005) State Council, No. 451
[39] Published by the European Commission on March 2014 < trade.ec.europa.eu/doclib/html/144591.htm> last accessed at 05.10.2015
[40] Business climate survey done by the American Chamber of Commerce in the People's Republic of China (2015) < http://www.amchamchina.org/policy-advocacy/business-climate-survey/> last accessed at 20.11.2015
[41] National Development and Reform Commission, and the Ministry of Commerce, “Catalogue of Industries for Guiding Foreign Investment 2015 Revision” (published March 13th 2015, effective starting with April 10th 2015)
[42] Cheng and Yue Chia, ASEAN-China Economic Relations: Developments in ASEAN and China ( Institute of Southeast Asian Studies 1989) 73
[43] W Shan, The Legal Framework of EU-China Investment Relations: A Critical Appraisal (China and International Economic Law) (1st Ed. Hart Publishing, U.S.A. 2005) 34
[44] The Company Law of the People’s Republic of China (adopted in October 27, 2005, effective as of January 1, 2006) English translation < http://www.fdi.gov.cn/ltlaw/lawinfodisp.jsp?id=ABC00000000000011567> last accessed at 01.10.2015
[45] Art 218 The Company Law of the People’s Republic of China (adopted in October 27, 2005, effective as of January 1, 2006) English translation < http://www.fdi.gov.cn/ltlaw/lawinfodisp.jsp?id=ABC00000000000011567> last accessed at 01.10.2015
[46] The Company Law of the People’s Republic of China (adopted in October 27, 2005, effective as of January 1, 2006) English translation < http://www.fdi.gov.cn/ltlaw/lawinfodisp.jsp?id=ABC00000000000011567> last accessed at 01.10.2015