GC Agenda China: October 2016 | Practical Law

GC Agenda China: October 2016 | Practical Law

A look back at the most recent legal developments for general counsel (GC) and their advisers working on China-related matters. GC Agenda China identifies and analyses the key issues that affect businesses, provides insight from leading legal practitioners and professionals, and gives specific and actionable guidance in response to these issues.

GC Agenda China: October 2016

Practical Law UK Articles w-004-1614 (Approx. 9 pages)

GC Agenda China: October 2016

by Brad Herrold, Consultant and Practical Law China
Law stated as at 27 Oct 2016China
A look back at the most recent legal developments for general counsel (GC) and their advisers working on China-related matters. GC Agenda China identifies and analyses the key issues that affect businesses, provides insight from leading legal practitioners and professionals, and gives specific and actionable guidance in response to these issues.

MOFCOM finalises FIE record-filing measures

The measures, together with the Decision of the Standing Committee of the National People's Congress on Revising the Law of the People's Republic of China on Foreign-invested Enterprises and Other Three Laws 2016 , which took effect 1 October 2016, usher in a new system for regulating the establishment (and subsequent amendment) of foreign-invested enterprises (FIEs) in China.
Under the new system, foreign investors may establish and amend an FIE by carrying out a record-filing procedure (备案) with MOFCOM, except where the FIE operates (or will operate) in an industry sector requiring special management measures. Where the foreign investment project is subject to special management measures, the FIE is still subject to MOFCOM’s traditional examination and approval procedure (审批) for foreign investment. The applicable procedure is determined by reference to a list of industry sectors requiring special management measures, commonly referred to as a negative list.
Contrary to market expectations, the negative list was not issued in conjunction with the final version of the measures. Instead, as a temporary arrangement, the National Development and Reform Commission (NDRC) and MOFCOM released the Announcement [2016] No. 22 of the National Development and Reform Commission and the Ministry of Commerce 2016 (NDRC and MOFCOM Bulletin 22/2016) to enable foreign investors and government officials to identify the current special management measures. Under the NDRC and MOFCOM Bulletin 22/2016, special management measures include:
  • Those restricted or prohibited industries under the Catalogue of Industries for Guiding Foreign Investment 2015 (2015 Foreign Investment Catalogue).
  • Those encouraged industries under the 2015 Foreign Investment Catalogue that are subject to a shareholding requirement or any senior management requirement.
The final version of the measures is quite similar to the draft version with only a few changes, including, for example,
  • A pledge of an equity interest in an FIE is not a record-filing matter. This signals that MOFCOM is likely to stop their oversight of this type of matter.
  • Listed companies are subject to a reduced filing burden.
  • The measures prevail where they conflict with prior legislation issued by MOFCOM.
For more coverage of this development, see Legal update, MOFCOM finalizes FIE record-filing measures.
For details on the 2015 Foreign Investment Catalogue, see Legal update, China releases new foreign investment catalogue.

Market reaction

Ren Qing, Partner, Global Law Offices

"In the final version of the measures, several important clarifications have been made. Among others, acquisitions of Chinese domestic enterprises by foreign investors are now clearly excluded from the application of the measures, and the concept of "actual controller" is defined. It is also worth noting that mergers between FIEs or between an FIE and a Chinese domestic enterprise fall within the scope of the application of the measures. Apparently the market welcomes and enjoys this fundamental change from approval to record-filing, as evidenced by the fact that in less than twenty days since the measures took effect there have been about 25,000 record-filings completed. That said, new issues may arise in the implementation of this new system, and MOFCOM is expected to issue detailed rules as needed."

Action items

GC for existing FIEs are not required to take immediate action in response to the measures. The measures do not require an existing FIE to carry out the record-filing procedure until the FIE is otherwise required to execute an amendment procedure. Moreover, as the applicable procedure is currently determined by reference to the 2015 Foreign Investment Catalogue, the new system currently does not represent a further liberalisation of the market entry criteria for foreign investment.
The measures, however, do not require submission of an FIE’s articles of association and joint venture contract (if any) to complete the record-filing procedure, and these documents no longer require MOFCOM approval, except in relation to FIEs engaged in industry sectors included in the negative list. Therefore, the changes may afford some foreign investors an opportunity to restructure their investments or otherwise amend the FIE's constitutional documents, and counsel may wish to seek specialist advice.

NDRC and MOFCOM circulate revised draft of foreign investment catalogue for Central and Western regions

On 14 September 2016, the NDRC and MOFCOM jointly circulated for public comment a revised draft of the Catalogue of Priority Industries for Foreign Investment in Central and Western Regions (中西部地区外商投资优势产业目录).
The draft aims to further stimulate foreign investment in China’s less developed regions by:
  • Expanding the scope of encouraged industries, that is, sectors open to foreign investment and that may qualify for preferential treatment.
  • Driving businesses into these regions to develop export-oriented industrial clusters.
  • Exploiting the comparative advantages of each region.
  • Optimising the use of foreign investment by upgrading traditional industries, promoting the development of service industries and limiting investment in sectors that have overcapacity.
The catalogue covers the following regions:
  • Shanxi and Inner Mongolia in north central China.
  • Liaoning, Jilin and Heilongjiang in the northeast China.
  • Anhui, Jiangxi, Henan, Hubei and Hunan in central China.
  • Guangxi, Chongqing, Sichuan, Guizhou, Yunnan and Hainan in southwest China.
  • Tibet, Shaanxi, Gansu, Ningxia, Qinghai and Xinjiang in western China.
Restrictions imposed under other rules or under the 2015 Foreign Investment Catalogue still apply.
For more information on the draft, including specific categories of encouraged sectors, see Legal update, NDRC circulates revised draft of foreign investment catalogue for Central and Western regions.

Market Reaction

Xu Liang, Partner, Hogan Lovells, Beijing

"This draft aims to guide more foreign investment toward encouraged areas including environmental restoration and conservation projects, vehicles and automotive parts production, medical institutions (restricted to equity joint ventures and co-operative joint ventures), and logistics and transportation services. The revisions show the Chinese government’s intention to exploit the comparative advantages of each region, promoting the development of service industries, and further liberating foreign investment in the general manufacturing sector."

Action items

GC for companies involved in those encouraged industries (for example, environmental restoration, the development and production of intelligent controls, robotics and next generation technologies, and the development and operation of sports, recreation and tourist venues) may wish to closely examine the specific benefits on offer in each region to see how that will shape the company's short-term and long-term investment priorities.

CSRC revises rules on Stock Connect programme

The provisions apply to the trading mechanisms separately established by the Shanghai Stock Exchange (SSE) and the Shenzhen Stock Exchange (SZSE) with the Hong Kong Stock Exchange (HKSE) (together, Stock Connect) and permit:
  • Mainland investors to trade a specified range of publicly listed shares on the HKSE.
  • Hong Kong investors to trade a specified range of publicly listed shares on the SSE and the SZSE.
The provisions replace trial provisions issued in 2014 and reflect the recent expansion of the Stock Connect programme to include the SZSE.
The provisions impose obligations on the relevant exchanges, settlement institutions and securities trading service companies to facilitate the implementation of the Stock Connect programme, including:
  • Real time transaction monitoring and information exchange.
  • Reporting of trades and market information.
  • Registration, depository and settlement services.
The provisions also contain the following rules:
  • The relevant exchanges may suspend Stock Connect trading if trading abnormalities seriously impact normal trading.
  • Brokers, securities companies and securities trading service companies are not permitted to match stock trading orders and may not provide stock transfer services for stocks traded through the Stock Connect in any market other than the stock exchanges.
  • A single overseas investor is limited to holding 10% of the shares of a single mainland listed company, and all overseas investors are limited in the aggregate to holding 30% of the A-shares of a single mainland listed company.
  • Investors are required to conduct trades in RMB (though the new provisions allow for the use of other currencies in accordance with the rules of the People's Bank of China).
  • Stock exchanges, securities trading service companies and settlement institutions must maintain Stock Connect trading records for 20 years.

Market reaction

Natasha Xie, Partner, JunHe Law Firm, Shanghai

"The provisions mark a new stage in the development of the forthcoming Shenzhen-Hong Kong Stock Connect. The SZSE announced several regulatory rules, which generally adopt the Shanghai-Hong Kong Stock Connect regime. Meanwhile, the provisions expand the scope of eligible shares and introduce market capitalisation as a screening criterion to prevent the risk of cross-border market speculation and manipulation. Specifically, SZSE shares eligible to be traded through the HKSE include (i) any constituent stock of the SZSE Component Index and SZSE Small/Mid Cap Innovation Index, with an average daily market capitalisation of at least RMB6 billion in the six months prior to the deadline for periodic review of the relevant index, and (ii) the SZSE-listed A shares of A+H companies dual-listed on the HKSE. A daily quota is imposed on both the Shenzhen Connect (at RMB13 billion) and Hong Kong Connect (at RMB10.5 billion)."

Action items

As with other recent developments with Stock Connect, the provisions do not create any specific action items for GC with oversight of assets or operations in China. Professional investment advisory firms will wish to remain in close contact with regulators in Mainland China and Hong Kong to keep abreast of current opportunities and subsequent developments.

SAT circulates draft rules on non-resident financial accounts

On 14 October 2016, the State Administration of Taxation (SAT) circulated for public comment the Measures on the Administration of Due Diligence of Tax-related Information on Non-resident Financial Accounts (Draft for Public Comments) (非居民金融账户涉税信息尽职调查管理办法(征求意见稿)), which according to the draft will take effect from 1 January 2017.
The draft measures help implement the Organisation for Economic Co-operation and Development’s Common Reporting Standard (CRS), which requires jurisdictions to obtain financial information from their financial institutions and automatically exchange that information with other jurisdictions on an annual basis.
The draft measures standardise:
  • The due diligence procedures that applicable financial institutions (and their branches) located in mainland China must follow to identify applicable financial accounts.
  • The tax-related information that must be reported to the SAT by those financial institutions in relation to those accounts.
The draft measures follow the CRS in delineating the scope of applicable financial institutions. These differ from the normal scope of financial institutions under Chinese law, and include depository, custodial and investment institutions, as well as specified insurance institutions.
Under the draft measures, a "non-resident financial account" is a financial account held at a financial institution in mainland China by a non-resident, or a financial account held at a passive non-financial institution in mainland China that is controlled by a non-resident. Certain deposit, pension, investment and savings accounts, as well as certain dormant accounts, social insurance accounts and accounts held by government institutions, and certain insurance and reinsurance contracts are expressly excluded from the scope of the measures.
The draft measures require financial institutions to complete due diligence on pre-existing financial accounts:
  • In relation to high value accounts, that is, financial accounts with total balance of six million yuan or more as of 31 December 2016, by 31 December 2017.
  • In relation to low value accounts, that is, financial accounts with total balances below six million yuan as of 31 December 2016, by 31 December 2018.
Comments on the draft may be submitted to the SAT until 28 October 2016.

Market reaction

Jon Eichbeger, Partner, Baker & McKenzie, Beijing

"China has previously committed to conduct the first exchange of CRS information by the end of 2018. The draft measures signal the Chinese tax authorities' determination to push for the automatic exchange of CRS information. As non-residents usually do not maintain accounts in Chinese financial institutions due to foreign currency controls, China’s automatic exchange network for CRS information is unlikely to have an immediate impact on non-residents. But the automatic exchange network for CRS information will have a far-reaching impact on Chinese residents who hold offshore assets. In fact, a key underlying purpose of the measures is to enable the Chinese tax authorities to strengthen tax collection on Chinese residents’ offshore income."

Action items

GC for financial institutions that fall within the scope of the draft measures will want to monitor the development of this draft and take steps to ensure the adopting mechanisms to implement the due diligence requirements once the final version of the measures takes effect. Counsel will want to regularly assess internal due diligence procedures and ensure that the information gathered, as well as confidentiality in relation to such information, is properly maintained.

SAIC circulates draft rules to implement right to return online merchandise

The draft measures give consumers who purchase certain products using the internet, television, telephone, mail order and other related means a limited right to return those products for a full refund within seven days of receipt without the need to provide justification for the return.
The following products are expressly excluded from the scope of protection:
  • Tailor-made products.
  • Perishable products.
  • Opened or downloaded consumer audio and video products, computer software and other digital products.
  • Newspapers and periodicals.
The following products also may be excluded, if the seller obtains the consumer's consent at the time of the sale:
  • Products that can easily change or that threaten health or safety by being unpacked.
  • Products that are significantly devalued by being activated or by trial use.
  • Products that when sold have a clear limited shelf life or a defective nature.
To be eligible for return, a product (and related accessories or trade marks) must be intact and retain its original quality and functionality. Although opening and reasonably testing a product does not disqualify it for return, testing a product beyond its quality and functional requirements to significantly devalue the product does disqualify it for return.
The draft measures follow similar provisions in the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013 (2013 Consumer Protection Law) and the recent draft implementing rules for the 2013 Consumer Protection Law. (For more information, see Legal update, SAIC circulates draft rules to implement Consumer Protection Law.)

Market reaction

Paul McKenzie, Managing Partner, Morrison & Foerster, Beijing and Shanghai

"The draft SAIC measures are a welcome effort to clarify the practical application of the general provisions of the Consumer Protection Law introducing the 7-day return policy. By seeking to make clearer, for example, what products are reasonably exempted from the policy, and also the proper condition of goods being returned under the policy, the measures should help reduce abuses of the policy by both unscrupulous merchants and overdemanding consumers."

Action items

GC for manufacturers, retailers and other distributors of products sold online (or through television, telephone, mail order and so on) in China will want to advise business colleagues of consumers' rights under the 2013 Consumer Protection Law and the implication of these recent implementing drafts, and ensure that they have put in place robust internal procedures to carry out returns (and the corresponding refunds) and to object to improper and unqualified requests.

SPC creates database of online judicial auction service providers

The measures establish a Network Service Providers Review Committee (网络服务提供者名单库评审委员会) charged with the selection, evaluation and removal of network service providers.
To qualify under the measures, online auction services providers must possess the following:
  • The equipment, funds and personnel to ensure a secure and orderly online auction.
  • Nationwide prominence and recognition as a leader in the field.
  • At least one year of experience conducting public affairs online auctions.
  • No record of illegal activities.
  • The qualifications and security systems required under laws and regulations.
  • An open system with advanced technology that is compatible with the courts and capable of expansion over time.
  • Specified technical capabilities.
The measures empower the review committee to:
  • Ensure a service provider is not capable of manipulating the auction process.
  • Engage a third party to appraise new applicants.
  • Conduct an annual evaluation of service providers already in the database.
Online providers must promptly report to the review committee major changes in their normal operations.
For more information, including information on the technical capabilities required under the measures, see Legal update, SPC creates database of online judicial auction service providers.

Market reaction

Jerry Fang, Partner, Global Law Offices, Shanghai

"The network judicial auction has in recent years become a very popular and successful means to auction enforced properties. In fact, online judicial auctions are widely applauded for making judicial enforcement more efficient and transparent, therefore substantially reducing the potential corruption risks. The measures will help to implement the SPC interpretation on network judicial auctions by standardising the qualifications of service providers. While there are a few famous network judicial auction platforms currently in operation, other regional platforms are being established. By establishing a database of qualified network service providers, the measures will help to ensure an orderly and regulated environment for network judicial auctions."

Action items

GC for companies interested in purchasing assets through online judicial auctions should take a close look at the auction procedures detailed in the measures to ensure the business can reach an informed decision on the bidding strategy.