China’s New Foreign Investment Law

China’s New Foreign Investment Law

On 31 December 2019 the State Council published the Implementing Regulations for China’s new Foreign Investment Law.

The Regulations clarify the Foreign Investment Law which came into force on 1 January 2020. The law aims to promote more equal treatment of foreign and domestic enterprises, better protect investors rights and improve protection against compulsory technology transfer. It replaces existing legislation on Wholly Foreign Owned Enterprises (WFOE), Sino-foreign Cooperative and Equity Joint Ventures (CJV and EJV respectively).

Companies that were incorporated prior to the implementation of the new Foreign Investment Law have 5 years from 1st January 2020 to continue operating under the previous laws. After that, they are expected to comply with the new Foreign Investment Law and modify their Articles of Association and Joint Venture contracts. The process of modification still needs to follow the old regulations which means unanimous vote of the Board of Directors.

According to Article 31 of the new Foreign Investment Law, the organizational form and institutional framework of FIEs will be subject to the provisions of the Company Law. Because the existing WFOE law is already largely in line with the Company Law, there will be a limited impact for existing WFOEs. Sino-foreign equity joint ventures on the other hand need to make changes to comply with the new law’s requirements (see following table). If a WFOE has more than one shareholder, the same changes are applicable.

One important change is that the new law, at least theoretically, gives majority shareholders greater decision-making power compared to the past.

During the transitional period, local bureaus of the AIC may in practice require companies to update their articles of association and joint venture agreements to bring them in line with the New Foreign Investment Law before they will process registration of any corporate changes. It is not clear yet whether companies need to get a new approval, go through supplementary record-filing, or make relevant changes to its business registrations within the five-year period.

Company Law Law on Sino-Foreign Equity Joint Ventures (EJV Law)
Investment % of foreign investor No restriction Generally no less than 25%
Highest authority Board of Shareholders Board of Directors
Minimum number of members in the board Permitted to have one executive director No fewer than three directors
Quorum None for shareholding meeting

1/10 shareholder voting rights

1/3 director voting rights

Two thirds or more directors for board meeting
Term of directors No more than 3 years 4 years
Voting mechanism for major matters (e.g. increase or decrease of registered capital, amendment of AoA, liquidation of company) Approval by shareholders representing more than two-thirds of the voting rights, unless otherwise agreed in AoA Unanimous approval by directors present at the meeting
Profit distributions Distributions based on proportion of paid-in capital, unless otherwise agreed by all shareholders Distributions based on registered capital ratios
Equity transfer restrictions Approval by more than half of the other shareholders, unless otherwise agreed in the articles of association Unanimous approval by the other shareholders

During the transitional period, local bureaus of the AIC may in practice require companies  to update their Articles of Association and joint venture agreements to bring them in line with the New Foreign Investment Law before they will process registration of any corporate changes.  It is not clear yet whether companies need to get a new approval, go through supplementary record-filing, or make relevant changes to its business registrations within the five-year period.

The new law needs to be interpreted in the context of China’s negative list and restricted industries. Foreign investors should be given equal treatment to Chinese firms in sectors which are not prohibited or restricted. The law states that local governments must abide by the commitments made by them within their statutory authority on the support policies, preferential treatment and facilities applicable to foreign investors when attracting foreign investment.


JV Allowed With A Chinese Natural Person

JV Allowed With A Chinese Natural Person

Shanghai, Jiangsu, Zhejiang and Anhui provinces are to allow the formation of Sino-foreign joint ventures with a Chinese citizen.

The details were released on December 25th jointly by the State Administration for Market Regulation in these areas in notice No. 9 on “Allowing Chinese natural persons to set up foreigner-funded enterprises with foreign investors in Shanghai, Jiangsu, Zhejiang and Anhui ”

Previously Chinese natural persons were not permitted to enter directly into Sino-foreign joint ventures with foreign investors but instead needed to set up an entity to use as an investment vehicle. The new regulation allows a Chinese natural person to be a shareholder of a Sino-foreign JV with the approval of the authority.

The new law came into effect on 1 January 2020 and is valid until 31 December 2021.


Second China International Import Expo Extended Schedule

SECOND CHINA INTERNATIONAL IMPORT EXPO (CIIE) EXTENDED SCHEDULE

The Shanghai Municipal Government has announced that the Second China International Import Expo (CIIE) to be held from November 5 to 10 will be extended to include November 13 to 20 from 9:30 am to 4:30 pm. Entry is free after registering online. During the Expo there will be the opportunity to join seminars on different topics.

Event Host Date
Better Design, Better Life China Furniture & Decoration Chamber of Commerce (CFDCC) 2019/11/6
Opportunity to Wine made from ‘the Belt and Road Initiatives’ Countries from CIIE Shanghai Waigaoqiao International Exhibition & Trading Centre of Wine & Beverage Co., Ltd. / Shanghai Waigaoqiao International Trading Operating 2019/11/7
The 10th China International Meat Conference China Chamber of Commerce of Foodstuffs & Native Products, Tianjin Municipal Bureau of Commerce 2019/11/7
Smart Cities and Urbanization Italian Trade Agency 2019/11/7
The 2nd Global Dairy Forum China Chamber of Commerce of Foodstuffs & Native Products 2019/11/8

 


Extra VAT Deduction

EXTRA VAT DEDUCTION FOR CONSUMER SERVICE COMPANIES

On October 8th the Ministry of Finance and the State Administration of Taxation announced an extra VAT deduction policy for taxpayers operating in consumer service sectors such as culture, sport, tourism, entertainment, health care, education, accommodation and catering.

According to announcement No. 87 issued jointly by the two bodies, from 1 October of this year to 31 December 2021, taxpayers with consumer services accounting for over 50% of their total sales will be allowed to apply an extra 15% deduction of input VAT.

The announcement specifies that this must be recorded as non-operating income in the income statement.

 

New Foreign Investment Law Approved

NEW FOREIGN INVESTMENT LAW APPROVED

China’s new Foreign Investment Law has been approved by the second session of the 13th National People’s Congress which took place on March 15, 2019. It will go into effect on Jan 1, 2020.

The new legislation is expected to replace three existing laws on foreign direct investment in China that deal with Sino-Foreign equity Joint Ventures, Wholly Foreign-Owned Enterprises and Sino-Foreign Contractual Joint Ventures, since these are considered no longer able to meet the needs of reform and opening up in the new era.

According to the law, foreign investors seeking to set up a business in China will be given national treatment prior to being admitted and will be subject to the foreign investment negative list, which prohibits investment in certain sectors.

The legislation also aims to give protection to the intellectual property rights of foreign-invested enterprises, including a revision of a separate law covering intellectual property protection and the introduction of a mechanism for punitive compensation in cases of intellectual property infringement. It prohibits forced technology transfer and illegal government meddling in foreign business practices.

However, details of operations are still required to be reported to Chinese officials, without legal guarantees that this data will not be passed on to Chinese competitors. Moreover, the law is a set of intentions rather than a specific, enforceable set of rules.


 

VAT Modifications

VAT Modifications

On March 5, Chinese Premier Li Keqiang delivered the 2019 Government Work report clarifying the government plans for this year. The following are some hot topics of the report:

Reduction of value-added tax (VAT) rates:
・ The 16% VAT rate, which applies to the manufacturing sector, will be lowered to 13%.
・ The 10% VAT rate, which applies to construction and transport, will be lowered to 9%.
・ The 6% VAT rate, which applies to services, will remain the same.
・ Starting from March 1st, VAT on 21 medicines and 4 active pharmaceutical ingredients for treating rare diseases will be cut from 16% to 3% to help reduce costs and ease financial difficulties for patients.

Reduction of social insurance costs for employers: The pension contribution rate for employers will be lowered to 16%. VAT will be lowered on April 1st and the social security rate will be lowered on May 1st.

Reduction of fees: The price for commercial power usage will be lowered by 10% and the price for commercial internet usage will be lowered by 15%.

Opening Policy:
・ Reduce the negative list of foreign investment.
・ Add a new area to Shanghai’s Pilot Free Trade Zone.
・ Continue to promote Sino-US economic and trade consultations.


 

Conference on Shanghai’s 100 New Measures to improve foreign investment

Conference on Shanghai’s 100 New Measures to improve foreign investment

On 7th November 2018, the Shanghai Municipal People’s Government represented by the Vice Mayor Mr. Wu Qing held a Conference on overseas investment in Shanghai to introduce the 100 new measures for a more open Shanghai.

The conference was jointly organized with Shanghai’s Municipal Commission of Economy and Informatization, Development and Reform Commission, Commission of Commerce, Finance Service Office, Foreign Affairs Office and Council for the Promotion of International Trade.

Directors of all the industrial parks in the Shanghai area also attended the conference.

Mr. Zhu Min, Vice Chairman of Shanghai Municipal Development and Reform Commission introduced the 100 New Measures for a more open Shanghai, including promotion of banking, securities and insurance sectors; free trade accounts; the easing of limits on service industry access; the opening up of automobile, aircraft and shipbuilding sectors; and the building go a “one-stop portal” for all administrative services.


Sino-Italian Agrifood Forum


Sino-Italian Agrifood Forum

In occasione della China International Import Exhibition si è tenuto il primo Sino-Italian Agrifood Forum che ha sviluppato le tematiche legate alla cooperazione bilaterale in aree chiave quali la sicurezza alimentare, l’innovazione, lo sviluppo sostenibile e l’innovazione tecnologica. ICE e Hema, retailer cinese del gruppo Alibaba, hanno firmato un accordo di collaborazione. Hema consentirà ai suoi clienti di accedere più agevolmente ai prodotti italiani provenienti da filiere italiane garantite.

Ms. Shen Li
HEMA, General Manager of Government Affairs