Features & Analyses

MOFCOM loosens its grip on foreign investment
China’s Ministry of Commerce has issued two circulars which delegate power and loosen its grip on approving foreign investment into the PRC. Investors in private equity and retail are the biggest benefactors.

Legal market not yet ready for limited liability partnerships
New rules concerning the establishment of local law firms and lawyers’ practice have opened the door for partnerships. But limited liability partnership – the type that lawyers had been hoping for – is nowhere to be seen in the rules.

Foreign investment welcome in China’s new advertising landscape
The Provisions for the Administration of Foreign-invested Advertising Enterprises (the Provisions) were promulgated by the State Administration for Industry and Commerce (SAIC) and took effect on October 1. The Provisions replaced the Regulation of Administration of Foreign Invested Advertising Entities and reflects a liberalisation trend that encourages foreign investment in this specialised business sector. By Richard Wageman, DLA Piper, Beijing.

Building a New Regulatory System for the Solvency of Insurance Companies
The promulgation of the Provisions for the Administration of the Solvency of Insurance Companies shows just how far China’s insurance industry has developed through a regulatory framework which has come about following years of organic development. By Lü Guoming*, Dr. Xu Guojian & Pek-Siang Tee, Boss & Young, Shanghai.

Guidelines for Trust Companies to Operate a Private Equity Investment Business in China
The China Banking Regulatory Commission recently issued guidelines which provide additional legal basis and specific operational guidelines for trust companies in China. By Allen Zhou, Paul, Hastings, Janofsky & Walker partner.

Can Exchangeable Bonds Satisfy Cash-Hungry Shareholders?
The Trial Provisions for the Issuance of Convertible Bonds by Shareholders of Listed Companies promulgated by the China Securities Regulatory Commission opens a new debt financing channel for cash-hungry shareholders in China’s financial market. These Provisions are designed to stabilise the country’s stock market and ease oversupply of stocks in the A-share market, as panic sets in about possible dumping of newly freed locked-up shares under the Share Segmentation Reform launched in 2005. By Jiang Jiang, Hylands Law Firm partner

Private Banking in China – When the Honeymoon Is Over
Private banking in China only received its baptism in September 2005 with the promulgation of the Interim Administrative Rules on Private Wealth Management Business of Commercial Bank. Some commentators have argued that the monetary threshold for the private wealth management regime is so low that its regulatory ambit covers territory more properly classified as retail banking than true private banking. By Jane Jiang, counsel, Corporate Practice, Allen & Overy Beijing and Fai-hung Cheung, counsel, Banking Practice, Allen & Overy Shanghai

Bidding for Real Estate Projects in China
Land prices in China’s tier one cities have risen at a terrific rate over recent years as available construction space has been squeezed. In response to this, local Chinese authorities have sought to extract their share of profits – at the time of granting the land use rights to the preferred developer – usually through some form of bidding process. By Thomas Fairley, Norton Rose

Employment regulations may prove a burden for employers
Companies had been expecting clarification from China’s Implementing Regulations for its Employment Contract Law in September. But many of the more ambitious provisions remain unsolved.

China’s increasing focus on mineral exploration to further fuel energy sector
China is encouraging foreign investment in the mineral resources exploration and exploitation industry. The government has placed importance on addressing the import of foreign capital and new technologies for mining.

PRC Foreign Exchange Administration Regulations Revised
China's currency has undergone fundamental changes along with the rapid economic development both domestically and in global markets. In order to adapt to today's financial and currency markets, the State Council has adopted a revision of Foreign Exchange Regulations of the People’s Republic of China on August 5 2008. Foreign companies need to be familiar with the newly revised foreign exchange regulations.

Court Clarifies Statute of Limitations for Civil Cases
The Provisions of the Supreme People’s Court on Several Issues Concerning Application of The Statute of Limitations System in Trial of Civil Cases brings forth 24 articles which give systemic and comprehensive regulations in regards to the general principals, calculation, interruption, suspension, effect and supplementary provisions of the statute of limitations.

Amended Regulations Could Open Telecoms Sector
Amendments to China’s Regulations for the Administration of Foreign-invested Telecommunications Enterprises came into effect in September 2008. The amendments lower capitalisation thresholds for the operation of basic services and make applications simpler. But it is not clear if the new rules will encourage more foreign investment in the telecoms sector.

Stories from the summit
Regulatory reform in China is more important than ever to investors in the country. Leading lawyers talked about how the government’s various regulatory approach shape investors’ behaviours at the 5th annual China Law & Practice China Summit.

New Opportunities for Investing in PRC Real Estate Market
In July 2008, MOFCOM issued a circular granting provincial-level authorities more leeway in approving foreign investment real estate projects. Lawrence Guo, a partner at Broad & Bright, looks at how the delegation of power will change the playing field.

Mining for China’s Outbound Direct Investment
With skyrocketing economic growth and an economy on track to be the world’s largest by 2025, China is seeking overseas investment opportunities. Sharon Wong and Malcolm Brennan of Mallesons Stephen Jaques and Sandra Knowler of Lang Michener explain why much of that outbound investment is likely to be in the energy and resources sector.

Preferred Stock Structure: Theoretical and Practical Issues of Implementation in Chinese Foreign-invested Enterprises
China’s new Company Law increased possibilities for the adoption of a “preferred stock” structure. Greg L Pickrell and Judy J Deng of Pillsbury Winthrop Shaw Pittman explore the practicality of incorporating the two-class stock structure within China’s corporate law doctrines and interplay with other relevant segments of laws.

Tax Preference Guideline Provides Objective Scrutiny for High/New-tech Enterprises
China has further clarified tax preferences for high- and new-technology enterprises (HNTEs) in a recent Working Guideline. Applicants that can satisfy tougher and more precise qualification criteria will benefit from clear and objective evaluation procedures, but must be prepared for broad scrutiny of their tax and legal compliance. HNTE status can be lost through business changes including mergers or acquisitions.

CSRC measures for financial consultants are unclear
China Securities Regulatory Commission has issued measures aimed at regulating the financial consultants who provide advice to listed companies in China. Although it is seen as a step in the right direction, by bringing China more into line with the world’s mature capital market environments, for many the measures do not provide a level playing field for M&A activity in China.

China Law & Practice Awards 2008 – The Finalists
China’s legal market continues to attract high-end, complicated and multi jurisdictional work and in Beijing this month, the China Law & Practice awards will reflect the complexities and challenges. Chris Bisogni and Joanna Law provide a summary of the deals and firms that made the 2008 shortlist.

Labour Law: State Council delays, as Guangdong makes it better
Guangdong is the first province to have issued a guiding opinion on the labour laws. The opinion attempts to clarify some of the ambiguities in the PRC Employment Contract Law, which took effect in January this year. But the issuance of the rules has caused considerable controversy, with some arguing the Guangdong authorities do not have the right to issue guiding opinions and that some its contents are, as a result, against the national law.

China strives to enhance the administration of its legal profession
In 1979, China had only 212 lawyers and 79 law firms, since 1994 the number of lawyers has increased by 10,000 per year, meaning there are approximately 140,000 lawyers in China and 10,000 law firms. In light of such rapid development, the issue of how to regulate the legal profession has become a serious one. By Changchun Yuan and Hongchuan Liu, Partners of Broad & Bright.

Shanghai encourages regional headquarters
The Shanghai municipal government has recently published a new set of regulations to further encourage the establishment of regional headquarters in the city, Simon Meng, Partner from Herbert Smith and Betty Tam, Consultant from Herbert Smith discuss whether the new regulations will prove more attractive than the previous provisions.

Notification thresholds for merger control
The Anti-monopoly Law (AML), which came into force on August 1, 2008, introduces a new legal regime of merger control. Alexandre Vincent and Elaine Zhu from CMS argue the implementation of the notifiable concentrations should be suspended until clearance by MOFCOM.

Impact of the Latest PRC Labour Law Legislation on Existing and Newly Concluded Labour Contracts

Collective Wage Bargaining: An Historical Turning Point

Trade Unions and Multinational Companies in China

Enhanced Protection for Female Employees in the PRC
Sexual harassment in the workplace in the PRC is more common than some would think. Women working in the PRC gained significant additional rights in 2005 when the Standing Committee of the National People’s Congress amended (the 2005 Amendment) the Law for the Protection of Women’s Rights and Interests of the PRC1 (Women’s Protection Law) to prohibit sexual harassment against women for the first time Lesli Ligorner from Paul Hastings, Janofsky & Walker discusses how the 2005 Amendment has failed to protect women from sexual harassment.

Anti-Monopoly Law: The Lawyers are Ready, but the Law Isn’t
China’s long-awaited Anti-Monopoly Law will become effective in one month. But lawyers are demanding that the government clean up some serious flaws and ambiguities in the draft mergers and acquisitions regulations.

China’s Leading Lawyers
How do the Leading Lawyer nominations reflect the evolution of the legal system in China? China Law & Practice takes a closer look at the results, and speaks to the nominees about their areas of expertise. Hear from the experts what the future holds for China law.

China’s New Judicial Interpretation on the Company Law – A Step Toward Systemized Corporate Exit Mechanisms
On May 12, 2008 the Supreme People’s Court promulgated the Interpretation of Some Issues regarding the Application of the PRC Company Law, which became effective on May 19, 2008. The new interpretation provides guidelines on the application of Chapter 10 of the Company Law on dissolution and liquidation of companies incorporated in China, including foreign invested enterprises and domestically owned companies, both limited liability companies and joint stock companies. See the full text translation

Refuse-Derived Fuel Projects in China from a Legal Perspective
Refuse-derived fuel is a source of renewable energy that is being increasingly utilised in developed countries. The aim of this article is to describe the legal framework governing this area of Chinese environmental law in an effort to give some insights that are useful for the prospective economic assessment of RDF projects by foreign investors.

Arbitrating Chinese Domestic Disputes
Despite some remaining flaws, arbitration is still the preferred method of dispute resolution for investors in China. This is not only due to the generally applicable advantages of arbitration over litigation but is also linked to the particularities of the Chinese legal system. However, these particularities should be carefully taken into account when drafting the arbitration clause in a contract involving a Chinese party, otherwise the arbitral process could lead to an unenforceable and useless award.

IP Procurement, Counseling and Enforcement: A 10-Point Patent Checklist
At an event co-sponsored by Foley & Lardner LLP and Asia Law & Practice, “China’s Innovation Boom: Doing Business and Achieving Growth in China”, Foley attorneys addressed effective strategies to obtain, protect, and enforce IPR.

The Future of Real Estate & Construction in China
The real estate and construction industry is one that has gone through many changes recently, and the government has made various attempts to control certain aspects of it with changes to the regulatory environment. Will investment in China continue in this industry and will the law evolve alongside it, or are new changes imminent? China Law & Practice takes a closer look at the field, what the lawyers have to say, and what the future will bring for China.

Patent System to Catch Up with Pharmaceutical Industry Expansion
The pharmaceutical industry in China has been expanding in recent years as the government strives to invent its own drugs and brands. However, the prevalence of counterfeit and generic drugs still remains a significant IP issue. The patent system needs further development before it will be able to properly protect patent holders.

Special Feature: China’s Leading IP Law Firms
IP infringement is still one of the greatest challenges for the Chinese government. Leading international and local law firms have been involved in many significant cases, which show how the IP system in China is evolving.

High- and New-Technology Enterprises: Updated Preferences, Qualifications and Trade-Offs
Earlier this year the Ministry of Science and Technology, the Ministry of Finance and the State Administration of Taxation issued a circular containing new Measures on HNTE Recognition. These measures, along with a Catalogue of supported industries, detail HNTE recognition requirements and necessary administration procedures under the PRC Enterprise Income Tax Law.

Golden Opportunity for Banks in China: New Rules Issued to Allow Commercial Banks to Trade Gold Futures
The new circular issued by the CBRC represents a step towards the wider acceptance of commodities futures transactions, helping banks generate more business, provide more flexibility in gold trading, and improve competitiveness. The various conditions, application procedures and other requirements are extensive; while there are still some concerns about the operation of the new regulation, it is a step in the right direction.

Administrative Rules on Material Asset Restructuring of Listed Companies: New Rules on the China Capital Market
On April 18 2008, the CSRC promulgated the Administrative Rules on Material Asset Restructuring of Listed Companies. This represents another major move to improve the basic system of the domestic stock market in China, and signifies that the M&A and restructuring of China’s listed companies has entered a new era of standardization and development.

China, Franchising and the 2008 Olympics: Is the Time Right?
China is now the largest franchise market in the world, and the 2008 Olympic Games has the potential to further expand this market. In respect of merchandizing, the BOCOG has utilized the franchise model to an unprecedented level. China’s IP laws have been in substantial compliance with international standards for several years now, but enforcement has been a problem. The Olympic Games has forced the Chinese government to implement the groundwork for effective IPR protection.

2008: The Year of Broadening Employee Rights and EEO Protections in China
Last year saw the promulgation of the Employment Contracts Law and the Employment Promotion Law, both of which work towards strengthening employee rights. The new laws build on the existing PRC Labour Law and make clarifications regarding open-ended contracts, employee rights in the workplace, trade unions and equal opportunities laws. As employers and employees are now adjusting to the new laws, more clarification is needed in order for them to be successfully implemented.

Current Policies and Prospects on Cross-straits Economic Exchanges
Vice Chairperson of the Mainland Affairs Council Liu Te-shun (LTS) spoke with Chris Bisogni (CB) and shared his thoughts on the development of cross-straits economic ties and what the Taiwanese people can expect as a result of Ma Ying-jeou’s victory in the recent election.

Confidence in Ma but Urgent Attention to the Economy Needed: Lawyers
The election of Ma Ying-jeou as Taiwanese president is good news for Taiwan but lawyers agree economic reforms and direct flights to the PRC are two issues that need urgent attention. China Law & Practice invited six lawyers from Taiwan’s leading law firms to discuss the implications of Ma Ying-jeou’s election victory.

China’s Leading M&A Law Firms
M&A deals were a boom industry in China last year. Leading international and local law firms have been advisors to many significant deals which showcased just how ripe the environment has been in China for major business activity.

PRC Law on Mediation and Arbitration of Labour Disputes: Further Improvement in Handling Labour Issues in China
The PRC Law on the Mediation and Arbitration of Employment Disputes is another important step made by the Standing Committee of the PRC National People’s Congress after its promulgation of the Labour Contract Law in June 2007. Both this and the Labour Contract Law are intended to better protect the legitimate rights and interests of employees and employers, with the latter in respect of the substantive law and the former in respect of the procedural system.

New Registration Measures Provide Clarity for China Land Owners
With the new Land Registration Measures introduced in February the PRC Ministry of Land Resources is making a huge step towards bringing clarity and buyer protection to what has, over the last two decades, become a complicated and confusing procedure for the registration of property. In its enthusiasm to bring about constructive change, however, the central government may find its announced implementation of the new Measures to be a bit ambitious.

Customs Measures Move With the Times
The General Administration of Customs of the People’s Republic of China recently released its Decision on Amending the PRC Customs Measures for the Supervision of Processing Trade Goods (Decision), which has been in effect since 2004. The new measure was announced on 14 January 2008 and took effect since 1 March 2008. This development heralds the end of a long process of outward processing trade reform that will see the upgrade of China’s processing trade.

Contracts, Disputes, and New Jobs: An Overview of China’s New Labour Laws
The beginning of this year saw the introduction of a series of laws that have an immense effect on the labour market in the PRC. Many of their provisions have been expected and prepared for, while other areas of employment law remain unclear for many employers operating in the PRC. Therefore, knowledge of their content is essential for every market player with the need for hiring workers within the country.

Manufacturing Export Goods in China
China is not a free economy. Every business activity is regulated. According to current PRC laws and regulations, any established presence of a foreign company shall be approved and lodged with relevant government authorities. Unregistered business activities may be caught and deemed illegal by Chinese government authorities.

IP Procurement, Counseling and Enforcement: A 10-Point Patent Checklist
At an event co-sponsored by Foley & Lardner LLP and Asia Law & Practice, “China’s Innovation Boom: Doing Business and Achieving Growth in China”, Foley attorneys addressed effective strategies to obtain, protect, and enforce IPR.

China’s New Judicial Interpretation on the Company Law – A Step Toward Systemized Corporate Exit Mechanisms
On May 12, 2008 the Supreme People’s Court promulgated the Interpretation of Some Issues regarding the Application of the PRC Company Law, which became effective on May 19, 2008. The new interpretation provides guidelines on the application of Chapter 10 of the Company Law on dissolution and liquidation of companies incorporated in China, including foreign invested enterprises and domestically owned companies, both limited liability companies and joint stock companies.

Refuse-Derived Fuel Projects in China from a Legal Perspective
Refuse-derived fuel is a source of renewable energy that is being increasingly utilised in developed countries. The aim of this article is to describe the legal framework governing this area of Chinese environmental law in an effort to give some insights that are useful for the prospective economic assessment of RDF projects by foreign investors.

China’s Leading Lawyers
How do the Leading Lawyer nominations reflect the evolution of the legal system in China? China Law & Practice takes a closer look at the results, and speaks to the nominees about their areas of expertise. Hear from the experts what the future holds for China law.

The Future of Real Estate & Construction in China
The real estate and construction industry is one that has gone through many changes recently, and the government has made various attempts to control certain aspects of it with changes to the regulatory environment. Will investment in China continue in this industry and will the law evolve alongside it, or are new changes imminent? China Law & Practice takes a closer look at the field, what the lawyers have to say, and what the future will bring for China.

Arbitrating Chinese Domestic Disputes
Despite some remaining flaws, arbitration is still the preferred method of dispute resolution for investors in China. This is not only due to the generally applicable advantages of arbitration over litigation but is also linked to the particularities of the Chinese legal system. However, these particularities should be carefully taken into account when drafting the arbitration clause in a contract involving a Chinese party, otherwise the arbitral process could lead to an unenforceable and useless award.

Grounded – Private Airlines Stifled by State-owned Players
With so many airlines operating in the PRC, private airlines find it hard to make profit amidst the many state-run competitors. In spite of liberalization, financing and cumbersome regulatory procedures have failed to produce a level playing field. To further enhance the aviation industry, these problems must be addressed in order to give private airlines more room to grow.

New China Banking Regulatory Guidelines: Supervision Raised to Minimize Risks of Domestic Banks
In response to the rapid development of the banking industry in the PRC, new rules were promulgated on February 4 2008 to address a number of related issues. Several of China’s top lawyers shared their views on the new Guidelines for the Consolidated Supervision of Banks (Trial Implementation).

Supreme Court Interpretations on Handling Disputes Between Registered Trademarks, Enterprise Name and Prior Civil Rights
In recent years, the number of cases concerning conflict between registered trademarks, enterprise names and the prior civil rights has been increasing sharply in China. This has created widespread concern and is fast becoming a hot and difficult issue in the trials of intellectual property rights.

Ambushing China and the Olympics
Ambush marketers, by loose association with an international sporting event, can claim the same benefits of advertising as an official sponsor who will have paid a great deal for that status. This can result in the misappropriation of intellectual property, and allows a marketer to unfairly capitalize on the publicity surrounding an event, such as the Olympics. As China gears up for the Beijing games, this is an important issue that needs to be addressed.

Putting China’s Labour Contract Law into Practice
With reports emerging of mass layoffs preceding its implementation, and factory closures or relocations to cheaper jurisdictions afterwards, the newly-effective Labour Contract Law has drawn much criticism. Large employers complain that it adds unreasonable costs, while employees are disappointed that the Law does not offer as many benefits for them as compared to the original draft. But is the Law as it stands a workable compromise, and can it be enforced in its current form prior to the release of implementing regulations?

PRC Civil Procedure Law Revised
In the past 16 years, the PRC Civil Procedure Law has played an important role in safeguarding the civil rights and interests of the parties and regulating the conduct of the other relevant participants in litigation. However, with the rapid development of China’s economy and the increasingly complex and elaborate Chinese legal system, more and more civil and commercial disputes have arisen in recent years and aggrieved parties are more willing than ever to resort to court to resolve their disputes. This has created the need for a revised version of the legislation with more specific guidance and rules, especially regarding retrial and enforcement procedures.

Amendments to the Law on Lawyers: Ethical Standards Raised, but Not Yet to International Standards
China’s new Law on Lawyers addresses fundamental rights for lawyers. This month, Joanna Law spoke with some of China’s top lawyers who shared their views on the amendments and discussed what further changes would be beneficial to the profession.

China’s Policy-Driven Push to Innovate and Drive its Auto Industry Green
New rules issued by the NDRC represent the Chinese government’s most recent effort to centrally manage the development of the domestic Chinese auto industry, while still promoting the innovation required for its success. The modern auto industry presents the nation with what is arguably one of the most technology-intensive and innovation-laden challenges yet. Whether such government-led innovation can be successful will certainly be interesting to watch as the rules are played out.

Investigative Due Diligence and M&A in China

The Draft Energy Law: a Possible Legal Protocol to Help China Go Green
As the second largest emitter of greenhouse gas in the world after the United States, the PRC is under great pressure and scrutiny from other countries, and has dedicated a great deal of resources and legislation effort in order to lower its emissions. Can the draft Energy Law successfully turn China into an energy-efficient country?

Implementing Regulations for the PRC Enterprise Income Tax Law
Since the passage of the PRC Enterprise Income Tax Law last March, local companies and foreign-invested enterprises alike have eagerly awaited the implementing regulations that would reveal the details of how the law would be put into practice. In order to enhance the operability of the law, these regulations give specific definitions, criteria for tax-liability reductions and concessions, and other critical details.

Methods for Registration of Mortgage of Chattels
Business people and lawyers have often complained of the vagueness and impracticalities of China's legal rules regulating the filing of charges over chattels. With the advent of the New Methods for Registration of Charges of Personal Properties, much light is shed and many problems removed; yet ambiguities still abide around several key issues.

Chinese Law on Lawyers Amended: Progress Made and to Be Made
Chinese lawmakers accomplished much in 2007. Chief among their achievements include the promulgation of the Property Law, Anti-monopoly Law, Labour Contract Law, and amendments to the Law on Lawyers. In particular, they adopted significant changes to the Law on Lawyers, ushering in a brand new era in the legal profession in China.

Why Compliance with the US Foreign Corrupt Practices Act Matters in China
How is it that US law can apply to certain Chinese companies and the conduct of Chinese business executives? The answer is the Foreign Corrupt Practices Act (FCPA), a broad-reaching US law enacted to prohibit bribery as a means of obtaining and retaining business. A common misperception in the business community is that the FCPA applies only to US companies and US citizens. However, under certain circumstances, the FCPA can also apply to the conduct of Chinese companies and Chinese business executives, making FCPA compliance crucial.

Opportunities for Foreign Investment in PRC Securities Companies
With the boom in the PRC equities markets and the emergence of outbound wealth, foreign interest in China's financial services market has grown substantially. In response to these pressures and the changing environment, the latest round of reforms in the securities industry offers increased clarity and certain real opportunities to tap into the growing PRC securities market.