Michael Harrod and Matthew Olsen
Section 1: China outbound investment
a) What are the key sectors in New Zealand that attract, or to which the government is seeking to attract, China outbound investment (COI)?
Key sectors which have previously attracted COI in New Zealand include infrastructure and utilities, primary industries, and manufacturing.
New Zealand prioritizes attracting foreign direct investment (FDI) into research and development, as well as competitive industries such as the tradeable consumer products or innovation enhancing sectors. New Zealand’s focus for overseas investment is on areas where there is a shortfall, or where inbound investment will increase export capabilities. The following industries are a priority: primary industries, food and beverage, specialized manufacturing, infrastructure, oil, gas and mining, ICT/digital and tourism.
b) Is the government generally supportive of COI? Which national and regional governmental bodies are responsible for driving COI in New Zealand? Can you describe the current political climate surrounding China and New Zealand?
The government is generally supportive of overseas investment and is seeking to increase the amount of quality FDI. In particular, it has allocated more resources encouraging focused investment from China that creates new opportunities and capabilities.
New Zealand Trade & Enterprise (NZTE) is the national body responsible for driving FDI in New Zealand. NZTE provides information and support to investors by facilitating their investments and assisting them with navigating local regulation. The local councils of each region also generally facilitate FDI.
The current political relationship between New Zealand and China is positive. New Zealand recently hosted Chinese Premier Li Keqiang, who reaffirmed China’s commitment to furthering the deep bilateral ties between the two countries. The two nations have recently signed various initiatives including a climate action plan, to give effect to the New Zealand-China Climate Change Cooperation Agreement, and talks are underway to update the existing Free Trade Agreement (FTA).
c) What are the notable Chinese investments or M&A that have recently taken place in New Zealand?
Chinese investments are common in New Zealand, particularly in manufacturing, property development and primary industries. Of particular note are the following recent transactions:
Shangai Mailing Co. Ltd. purchased a 50% stake in New Zealand’s largest livestock processing and marketing company Silver Fern Farms for NZ$267 million in 2016;
Yashili International Holdings Ltd. constructed its Pokeno-based NZ$220 million infant formula processing plant in 2015;
KuangChi Science Ltd. acquired a controlling stake for AU$50 million in Martin Aircraft Company in 2015;
Beijing Capital Group Co. Ltd. purchased New Zealand’s largest waste management business for NZ$950 million in 2014; and
Shanghai Pengxin Group Co. Ltd. acquired, among other New Zealand investments, a 35% interest in Top Harbour Ltd. as part of a NZ$550 million land development project.
Section 2: Investment vehicles
a) What are the most common legal entities and vehicles used for COI in New Zealand? How long do they take to become operational?
A limited liability company, whether overseas or domestic, is the most commonly used structure for COI in New Zealand. Other commonly used vehicles include partnerships, limited partnerships and joint ventures between Chinese and New Zealand companies.
Companies and limited partnerships are both quick and easy to register and become operational almost immediately.
b) What are the key criteria for establishment and operation of these vehicles that are relevant to COI (e.g. capital requirements, local directors)?
A company must have at least one director who lives in New Zealand, or who lives in Australia and is a director of a company in Australia.
A limited partnership must have at least one general partner that is an individual, (limited) partnership or company.
An overseas company carrying out business in New Zealand must be registered with New Zealand’s overseas company register. Registration is a simple process completed online.
Section 3: Investment approval
a) Explain the process and timing for foreign investment approval (including any national security review).
Approval of foreign investment is principally regulated by the Overseas Investment Act 2005 (OIA). Consent from the Overseas Investment Office (OIO) is required if the investment involves an acquisition by an overseas person (or associate) of a direct interest in, or 25% or more ownership and/or control of interests in, sensitive land and/or significant business assets.
Significant business assets are high-value businesses with more than NZ$100 million (Rmb485 billion) of assets. Sensitive land includes the foreshore or seabed, reserves and non-urban land. The approval process for sensitive land is more involved and prolonged. The acquisition of fishing quota is also regulated.
All applications are tested against prescribed investment criteria. Applicants must be of good character, have relevant business experience or acumen, be able to demonstrate a financial commitment to the investment, and be eligible for visa or entry permission under New Zealand’s immigration laws. Applicants for sensitive land consent are also required to demonstrate that their investment will, or is likely to, benefit New Zealand and, in certain cases, that the benefit is substantial and identifiable.
The OIO currently aims to process consent decisions between 55 and 75 working days, depending on the complexity of the assets being acquired and excluding the time where the OIO is waiting for further information to be provided or is consulting with third parties. Application fees range from NZ$13,000 and NZ$54,000, depending on the nature of the assets and investment. There is a high approval rate for high-quality and well-prepared applications.
b) Briefly explain the investment restrictions for any specially regulated/restricted sectors (natural resources, financial services, telecoms and infrastructure), including whether the government is entitled to any special rights (e.g. golden shares) in those sectors.
In addition to the OIO’s regulation outlined above, certain industries require sector-specific approval in order to make an investment. For example only:
Aviation: Prior written consent of the Crown is required before a person acquires 10% or more of voting rights in Air New Zealand Ltd. (New Zealand’s national carrier);
Telecommunications: Prior written consent of the Crown is required before a person acquires 10% or more, or a non-New Zealand national acquires more than 49.9%, of voting rights in Chorus (New Zealand’s largest telecommunications infrastructure company);
Banks: In order to be a registered New Zealand bank, certain ownership criteria must be satisfied, and in order for a person to acquire a direct or indirect qualifying interest of 10% or more of the voting securities in a New Zealand-incorporated registered bank, prior written consent of the Reserve Bank of New Zealand (RBNZ) is required;
Insurers: Prior to a potential acquirer taking control of a licensed insurer, the RBNZ must be notified and determine whether the insurer will continue to satisfy all licensing requirements post-acquisition;
Non-bank deposit takers: The RBNZ’s prior written consent is required for a transaction resulting in a person gaining a level of influence over a non-bank deposit taker which would allow the person to directly or indirectly: appoint 25% of the NBDT’s governing body, or have a qualifying interest in 20% or more of the NBDT’s voting securities;
Gaming: Approval is required from the Secretary of Internal Affairs in order to acquire a “significant influence” in a company that holds a casino licence; and
Mixed ownership model companies: No person other than the Crown may have more than 10% of issued shares or voting securities in a mixed ownership model company listed under the Public Finance Act 1989.
New Zealand also has a Takeovers Code that applies to listed and widely-held companies. The Code prescribes a detailed framework for material investment in such companies, and ensures disclosure to–and equal treatment of–shareholders.
c) Which authority oversees competition clearance, when is notification mandatory, and what is the merger clearance process (including whether pre- or post-closing)?
New Zealand’s competition regulator is the Commerce Commission (Commission). The Commission is responsible for enforcing the Commerce Act 1986 which prohibits certain business acquisitions that substantially lessen competition in a market.
Merging firms can apply to the Commission for clearance or authorization of a proposed merger. The Commission will “clear” a merger if it is satisfied that the deal is not likely to substantially lessen competition in a market. Alternatively, the Commission may “authorize” a merger that substantially lessens competition in a market, if the merger is likely to result in a benefit to the public. Authorizations are relatively rare.
The clearance and authorization processes are not mandatory at any stage of a merger, and notification is not required at any point. Accordingly, the Commission has the power to investigate and commence proceedings if it suspects that a merger or acquisition has breached the Commerce Act. The Commission may also impose injunctions and orders such as the divestiture of assets or shares. The Commission cannot grant clearances or authorizations retroactively, so participants of a proposed merger must assess in advance whether the transaction could give rise to a substantial lessening of competition in a market in New Zealand and, if so, the merger should be made conditional on Commission approval.
d) Are there any unique processes that could potentially block a foreign investment, e.g. consent from labor unions?
Other than the investment approval processes discussed above, there is no other unique process that could block a foreign investment.
e) Are there approval requirements when a foreign investor increases or exits its investments?
A foreign investor who increases its investments will be subject to the OIO, Commission and other regulatory regimes discussed above. There are no approval requirements for when a foreign investor exits its investments, unless the acquirer is subject to the above regimes. If the company being acquired is or was party to a listing agreement with a registered exchange and has securities that confer voting rights quoted on the registered exchange’s securities market, it will be considered a Code Company. The Takeovers Code applies to Code Companies to ensure that shareholders are well informed of, and can participate in, changes of control.
Section 4: Tax and grants
a) Are there tax structures and/or favorable intermediary tax jurisdictions that are particularly useful for FDI into New Zealand?
New Zealand is a party to double tax agreements with an extensive network of countries. These agreements provide relief from double taxation on all types of income and greater certainty for those conducting businesses in multiple jurisdictions.
FDI into New Zealand is most commonly made through a limited liability company (see Section 2). Other common structures include limited liability partnerships, where income and expenses flow through to the partners on the basis of each partner’s share and tax status.
b) What are the applicable rates of corporate tax and withholding tax on dividends?
The main types of taxes applicable to companies in New Zealand are:
Income tax: Applicable on a company’s net income after allowable deductions at 28%. Income tax is applicable on the worldwide income of New Zealand residents and New Zealand-sourced income of non-residents, and is subject to double tax agreements; and
Goods and services tax (GST): Imposed on the supply of certain goods and services in New Zealand and on certain goods and services imported into New Zealand, at a rate of 15%. GST is borne by the final consumer, such that a person registered for GST can make a claim back for GST which has been paid in respect of a good or service. Accordingly, GST does not normally affect the profits of a business, except for goods or services of which the company is a final consumer.
There are no comprehensive capital gains tax, gift, stamp, or estate duties in New Zealand.
Non-resident withholding tax (NRWT) is imposed on the gross amount of dividends paid to non-New Zealand residents. NRWT of 30% applies to unimputed dividends paid to a non-resident shareholder. Fully imputed dividends are subject to a NRWT rate of 0% where the non-resident shareholder holds 10% or more of direct voting interests in the company. NRWT of 15% is generally applicable for other dividend payments. The applicable rate of NRWT is subject to further reduction under double tax agreements.
c) Does the government have any FDI tax incentive schemes in place?
Although the New Zealand government does not have any specific FDI tax incentive schemes in place, there are various industry-specific concessions and tax benefits available, including for:
Venture capital: Income received by non-resident investors from the sale or other disposal of shares in venture capital is exempt from New Zealand income tax purposes if certain requirements are met, to encourage international venture capital investment into New Zealand companies;
Agriculture, forestry and aquaculture: Specific tax deductions are permitted for farming, agricultural or aquacultural businesses, such as expenditure incurred for improvements made to such businesses or land or for farm development; and
Film: Tax deductions are allowed for certain expenses incurred in acquiring film rights and producing film.
d) Other than through the tax system, does the government provide any other financial support to investors? If so, please provide an overview.
Non-tax incentives are generally not available in New Zealand. However, ad hoc incentives are available for specific sectors. For example, the Employment Relations (Film Production Work) Amendment Act 2010 secured concessions for a foreign investor by amending employment rules for the film industry.
e) Are there any reciprocal tax arrangements between New Zealand and China? If so, how can they aid investors?
A double tax agreement between China and New Zealand has been in place since 1986. The double tax agreement provides that the applicable rate of NRWT will not exceed:
15% of the gross amount of dividend payments;
10% of the gross amount of interest payments; and
10% of the gross amount of royalty payments.
The New Zealand-China double tax agreement does not extend to Hong Kong, with which New Zealand has agreed a separate tax treaty.
Section 5: FX controls and local operations
a) What foreign currency or exchange restrictions should investors be aware of?
There are no exchange controls on foreign exchange transactions undertaken in New Zealand, either by New Zealand residents or non-residents. There is also no restriction on the movement of cash into or out of New Zealand, but disclosure is required where sums exceed NZ$10,000 (Rmb48,600) or transactions are otherwise suspicious.
The Anti-Money Laundering and Countering the Financing of Terrorism Act 2009 places obligations on New Zealand’s financial institutions, banks and businesses to detect and deter money laundering and terrorism financing with respect to both domestic and foreign investors.
b) Are there any legal restrictions on bringing in foreign workers? How difficult is it for foreign investors to secure expatriate visas for shareholder representatives, senior managers and workers in practice?
Chinese nationals wishing to work in New Zealand are required to hold a work visa. General visas that are available to Chinese nationals include:
Business Visitor Visas, which allow individuals to come to New Zealand for business reasons for up to three months in any one year; and
Specific Purpose Work Visas, which allow individuals to come to New Zealand for a specific purpose (such as a genuine business reason) to spend more than three months a year in New Zealand, a secondment or where an individual has specialist skills, expertise or attributes that are likely to benefit New Zealand.
In addition, there are specific visas for Chinese nationals, including the China Skilled Workers Visa and the China Special Work Visa, both of which allow Chinese nationals to work in New Zealand for up to three years.
New Zealand has flexible immigration policies that are intended to facilitate entry into New Zealand for investors and entrepreneurs.
c) What are the requirements and process for purchasing commercial property?
Foreign investments in commercial property will be subject to government approvals where the land is deemed sensitive under the OIA (see 3a). There is no other process that could restrict such foreign investment.
Section 6: Dispute resolution
a) Does New Zealand have a bilateral investment protection treaty with China or other jurisdictions commonly used for investing into the country?
In 2008, New Zealand became the first Organisation for Economic Co-operation and Development (OECD) member country to sign an FTA with China. Investment protections for Chinese investors under this agreement include:
Equal treatment of their investment with that of a national of New Zealand or any other country;
Fair and equitable treatment;
Protection against expropriation of their investment; and
The option to engage neutral third party arbitration for disputes.
b) How efficient are local courts’ enforcement and dispute resolution proceedings, and are there any procedural features foreign investors must be aware of?
Disputes in New Zealand can be efficiently resolved through local courts (especially through summary proceedings) or, if agreed upon by the parties, through arbitration. Most cases are resolved in the District Court in under a year. The majority of cases in the High Court are generally resolved within nine months.
Procedures are not materially different than other common law jurisdictions.
c) Do local courts respect foreign judgments and are international arbitration awards enforceable?
New Zealand law provides for the enforceability of judgments from the qualifying courts of 22 specific jurisdictions on a reciprocal basis (including Hong Kong). Judgments from a Hong Kong court may be registered and then enforced through the New Zealand courts. For China and other jurisdictions not included in this list, foreign judgments can be enforced as per the common law.
International arbitration awards are generally enforceable. Additionally, New Zealand is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). China and Hong Kong are also signatories, meaning arbitration awards made in these states are enforceable in New Zealand as if they were domestic arbitration awards.
d) Are local judgments and arbitration awards from New Zealand generally enforceable in other jurisdictions?
New Zealand legislation provides for the reciprocal enforcement of local judgments in 22 jurisdictions, including Hong Kong, and New Zealand judgments are readily enforceable in Australia.
As a member of the New York Convention, New Zealand arbitration awards are enforceable in all 156 member states and territories, including China and Hong Kong.
Michael Harrod is a corporate partner at Mayne Wetherell with extensive experience across a range of corporate and commercial transactions, and with a particular focus on cross border M&A. Michael has been recognized by Chambers and Partners, Asia Pacific Legal 500 and Asialaw Profiles in the fields of M&A, capital markets and private equity.
Michael’s recent transactions include acting for:
Matthew Olsen is a corporate partner at Mayne Wetherell. Matthew’s practice focuses on assisting the firm’s Asia Pacific client base on a wide variety of transactions, most notably cross-border M&A, joint ventures and equity capital markets.
Matthew’s recent transactions include acting for:
Michael Harrod 和 Matthew Olsen
2016年，上海梅林有限公司以2.67亿纽元收购了Silver Fern Farms（新西兰最大的肉类加工和销售公司）50%的股份；
2015年，光启科学有限公司以5000万澳元收购Martin Aircraft Company的控股股权；
上海鹏欣集团有限公司在多个新西兰投资项目以外，斥资5.5亿纽元进行一个土地发展项目，其中包括收购Top Harbour Ltd.的35%股权。
2. 关于这些投资工具的设立和营运，有哪些主要规定适用于中国境外投资 (例如，资本要求、本地董事) ？
1. 请说明审批外国投资 (包括任何国家安全审查) 的程序和时间。
2. 请简单说明一下对任何受特殊监管/限制的领域 (例如自然资源、金融服务、电信和基础设施) 的投资限制，包括政府是否在这些行业里有特殊权利 (例如黄金股份)。
3. 哪个机构负责竞争审查？什么情况下必须报告？并购控制程序是怎样的 (包括是否在成交前或成交后控制)？
4. 是否存在任何特别的程序会拦阻外国投资 (例如需要工会的同意）？
Michael Harrod是Mayne Wetherell律师事务所业务合伙人，在处理各类公司和商业交易方面经验丰富，特别专注于跨境并购交易。他在并购、资本市场和私募股权投资领域获法律评级机构《钱伯斯》(Chambers and Partners)、《亚太法律500强》 (Asia Pacific Legal 500) 及《亚洲法律概况》(Asialaw Profiles)的认可。
Matthew Olsen是Mayne Wetherell律师事务所业务合伙人，主要协助该所的亚太区客户处理各类交易，尤其是跨境并购、合资公司及股票资本市场业务。