Message from U.S. Chamber of Commerce
This is the second of two U.S. Chamber of Commerce reports intended to promote deeper understanding and highlight the importance of foreign direct investment (FDI) between the United States and China. The U.S. Chamber believes that increasing two-way FDI can yield significant benefits for both countries. Increased FDI has already led to greater economic growth, more jobs, and expanded opportunities in both China and the United States. It has strengthened the relationship between the world‘s two largest economies and has led to greater global stability and prosperity. The first report, Faces of Chinese Investment in the United States, aimed to promote greater Chinese investment into the United States and help demystify the U.S. investment climate for Chinese business leaders interested in the American market. In addition to sharing the wisdom of Chinese manufacturers, service providers, and business leaders who run state-owned and private companies both large and small, the report made the case for why Chinese investment in the United States helps ordinary Americans. This second report, based upon research conducted by Covington & Burling at the U.S. Chamber‘s request, includes a detailed analysis of China‘s inbound FDI approval process and discusses implications for U.S. companies related to market access, national treatment, and transparency in China. Arguably the most comprehensive and detailed work published to date on China‘s inbound FDI approval process, the report draws extensively on interviews conducted with a number of foreign companies doing business in China. It also compares China‘s inbound FDI approval process with the process China uses to approve investments by domestic investors, as well as with the measures that exist in the United States for reviewing inbound FDI. We hope that this second report will help to inform stakeholders in both countries about the challenges that exist for U.S. and other foreign firms investing in China. We also hope it will stimulate discussion regarding solutions that could reduce barriers to investment in a manner that contributes to China‘s development and economic rebalancing objectives. Negotiating a high-standard U.S.-China bilateral investment treaty (BIT) with these issues in mind would be a promising way to expand two-way investment. The U.S. Chamber looks forward to supporting the efforts of both governments to reach an agreement that achieves the substantive objectives of the 2012 U.S. Model BIT. This will require taking fully into account the characteristics of China‘s inbound FDI approval regime outlined in this report.

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The U.S. Chamber of Commerce believes strongly in keeping the U.S. economy open to foreign investment, as it is in our own best interests. There are voices in the United States whose response to restrictions on American companies abroad is to propose new trade and investment restrictions of our own. The U.S. Chamber opposes such an approach — but proactive steps by China to liberalize its own investment regime and further welcome inbound FDI into China would nevertheless help broaden support in the U.S. for increased inbound Chinese investment.

Sincerely,

Tami Overby Vice President, Asia U.S. Chamber of Commerce

Jeremie Waterman Executive Director, China & Senior Policy Advisor, Asia U.S. Chamber of Commerce

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CHINA’S APPROVAL PROCESS FOR INBOUND FOREIGN DIRECT INVESTMENT: Impact on Market Access, National Treatment, and Transparency Table of Contents I. II. Executive Summary………………………………………………………………………. 6 China‘s World Trade Organization Commitments Related to Approval of Inbound FDI A. Elimination of Trade-Distorting Conditions on Investment………………………...12 B. Market Access……………………………………………………………………… 12 C. National Treatment…………………………………………………………………. 13 D. Transparency……………………………………………………………………….. 14 E. Appeal Process……………………………………………………………………... 15 China‘s Approval Process for Inbound FDI…………………………………………….. 15 A. Pre-Establishment Approval Process………………………………………………. 15 1. Foreign Investment Catalogue…………………………………………………..15 2. Industrial Policies………………………………………………………………. 16 3. Obtaining Government Approval………………………………………………. 17 a) General Investment Approval Process…………………………………… 18 STEP 1.1: AML Review of Concentrations…………………………….. 18 STEP 1.2: National Security Review…………………………………… 21 STEP 2: AIC ―Name Pre-Approval‖………………………………….. 22 STEP 3: Receipt of Various Site-Related Opinion Letters………….... 23 STEP 4: DRC Project Approval………………………………………. 23 STEP 5: Commerce Department Approval…………………………… 27 STEP 6: License of the Industry Regulator (if applicable)…………… 29 STEP 7: AIC Enterprise Registration…………………………………. 30 STEP 8: Other Administrative Registrations…………………………. 31 NOTE: Variances in the General Investment Approval Processes….. 31 b) Alternative Approval Processes for Certain Service Industries………….. 32 (1) Direct Industry Regulator Approval (with no Commerce Department approval)…………………………………………………………….. 32 (2) Commerce Department Approval (with no other industry regulator input required)……………………………………………………….. 33 (3) Industry Regulator Pre-Approval and Commerce Department Approval…………………………………………………………….. 33 (4) Commerce Department Approval (with input from the industry regulator)…………………………………………………………….. 34 B. Approval Processes for Post-Establishment Expansion……………………………. 35 1. AML and National Security Review…………………………………………...35 3

III.

IV.

V.

VI.

VII.

Expansion — Adding New Products………………………………………….. 35 a) Industry Regulator Approval……………………………………………... 35 b) Business Scope Amendment……………………………………………... 36 3. Expansion — Adding New Branches…………………………………………. 36 C. Strategic Investment in Chinese Publicly Traded Companies……………………... 38 STEP 1: SASAC Approval (if applicable)………………………………………... 40 STEP 2: DRC Foreign Investment Approval……………………………………... 40 STEP 3: MOFCOM Share Purchase Approval…………………………………… 40 STEP 4: Open a Foreign Exchange Account and Apply/File with CSRC………... 41 STEP 5: Complete the Share Purchase……………………………………………. 42 STEP 6: Obtain MOFCOM FIE Certificate………………………………………. 42 STEP 7: AIC Amendment of Company Registration and Receipt of Business License for a Foreign-Invested Enterprise……………………………….42 STEP 8: Other Administrative Registrations……………………………………... 43 D. NDRC-Proposed Amendments to the Foreign Investment Approval Process……... 43 Appeal Process…………………………………………………………………...……… 45 A. Procedure and Grounds for Overturning an Administrative Decision……..………. 45 1. Administrative Reconsideration………………………………………………..45 2. Administrative Lawsuit………………………………………………………... 46 B. Practical Limits……………………………………………………………………...47 China‘s Approval Processes for Domestic Investors and the Question of National Treatment……………...………………………………………………………………… 48 A. Approval Processes………………………………………………………………… 48 1. Determining What Governmental Approval Is Required……………………... 48 2. Approval Process for Industries in the Domestic Catalogue………………….. 49 3. Approval Process for Industries Not in the Domestic Catalogue……………... 51 B. Comparison with the Approval Processes for Foreign Investors…………………... 52 Issues that Arise During the Inbound FDI Approval Process…………………………… 53 A. Industrial Policies Favoring Domestic Competitors……………………………….. 53 1. Fostering National Champions………………………………………………... 54 2. Selective Use of Foreign Capital……………………………………………… 55 B. Relatively Opaque Inbound FDI Approval Processes……………………………… 55 1. Written and Unwritten Regulatory Barriers…………………………………… 57 2. Deal-Specific Conditions of Investment Approval……………………………. 59 C. Lack of Effective Recourse………………………………………………………… 62 Contrast to U.S. Approval Processes for Inbound FDI…………………………………. 63 A. Approval Processes that Affect Foreign and Domestic Investors Equally………… 64 1. Antitrust Review………………………………………………………………. 64 2. Industry Regulator Approvals…………………………………………………. 65 a) Investments in Many Industries Do Not Require Industry Regulator Approval………………………………………………………………….. 65 b) Examples Where Industry Regulator Approvals Are Required………….. 65 (1) Telecommunications Industry……………………………………….. 66 2. 4

(2) Renewable Energy Industry…………………………………………. 66 (3) Banking Industry……………………………………………………. 67 3. Securities-Related Approvals and Disclosures………………………………... 67 B. Approval Processes that Apply Only to or Disparately Affect Foreign Investors…. 69 1. National Security Review — CFIUS………………………………………….. 69 2. Examples Where Industry Regulator Approvals Disparately Affect Foreign Investors……………………………………………………………………….. 71 a) Telecommunications Industry……………………………………………. 72 b) Renewable Energy Industry……………………………………………… 72 c) Banking Industry…………………………………………………………. 73 C. Appeal Processes…………………………………………………………………… 73 VIII. Addressing Concerns Related to China‘s Inbound FDI Approval Process……………... 75 A. Industrial Policies that Foster Domestic Industries and National Champions……. 76 B. Inbound Foreign Investment Approval Processes Designed to Support Industrial Policies…………………………………………………………………………….. 77 1. Reducing the Number of Required Approvals…………………………………77 2. Increasing Transparency in the Foreign Investment Approval Process………..77 C. Limited Effectiveness of China‘s Administrative and Judicial Review Processes...79 IX. Conclusion………………………………………………………………………………. 79

Charts Chart 1: Chart 2: Chart 3: Chart 4: Chart 5: Chart 6: General Approval Process for Inbound FDI……………………………………. 18 Ultimate Approval Authorities for Inbound FDI………………………………. 24 Alternative Approval Process for Inbound FDI in Certain Service Industries…. 34 Approval Process to Add New Branches……………………………………….. 38 Project Approval Authorities for Domestic Investment………………………… 49 Approval Process for Domestic Investment in Industries in the Domestic…….. 51

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I. EXECUTIVE SUMMARY
China‘s approval process for inbound foreign direct investment (FDI)1 drives many of the headline economic issues currently being discussed between China and its trading partners, as well as internally within China. A central feature of government-to-government talks is the concern, often expressed by foreign companies, that aspects of China‘s inbound investment approval process impede their investment in China, extract valuable commercial concessions as a price for market entry, and favor domestic over foreign companies. While some Chinese policy-makers believe these approval processes are helping China achieve its industrial policy and economic development goals, others believe that the time has come to rethink the state-directed development model China has relied on for the past 30 years, especially given slowing gross domestic product (GDP) growth,2 declining inbound FDI,3 and lagging competitiveness of state-owned enterprises.4 In particular, a February 2012 report published jointly by the Development Research Center of the State Council and the World Bank argues that

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The Organisation for Economic Co-operation and Development (OECD) defines FDI as ―investment by a resident entity in one economy that reflects the objective of obtaining a lasting interest in an enterprise resident in another economy. The lasting interest implies the existence of a long-term relationship between the direct investor and the enterprise and a significant degree of influence by the direct investor on the management of the enterprise. The ownership of at least 10% of the voting power, representing the influence by the investor, is the basic criterion used.‖ http://www.oecd-ilibrary.org/sites/factbook-2011en/04/02/01/index.html?contentType=&itemId=/content/chapter/factbook-2011-38en&containerItemId=/content/serial/18147364&accessItemIds=&mimeType=text/h (Last accessed: September 12, 2012). See also OECD Benchmark Definition of Foreign Direct Investment - 4th Edition, 2008, http://www.oecd.org/daf/internationalinvestment/investmentstatisticsandanalysis/oecdbenchmarkdefinitionofforeign directinvestment-4thedition.htm (Last accessed: September 12, 2012). 2

See, e.g., ―China Q2 GDP Growth 7.6 percent, Slowest in 3 Years,‖ Thomson Reuters, July 12, 2012, http://www.reuters.com/article/2012/07/13/us-china-economy-gdp-idUSBRE86C04220120713 (Last accessed: September 17, 2012). 3

See, e.g., ―Sliding Investment in China Signals Confidence Waning,‖ Bloomberg News, August 16, 2012, http://www.bloomberg.com/news/2012-08-16/china-s-july-fdi-falls-8-7-from-year-earlier-to-7-58-billion.html (Last accessed: September 17, 2012) (―Foreign direct investment in China fell to the lowest level in two years in July [2012]…. Investment declined 8.7 percent from a year earlier to $7.58 billion, the eighth drop in nine months and the smallest inflow since July 2010.‖) 4

The Nature, Performance, and Reform of State-Owned Enterprises, Unirule Institute of Economics, April 12, 2011, http://english.unirule.org.cn/Html/PassedRes/20100419182217566.html (Last accessed: September 14, 2012).

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in order for China to avoid the ―middle-income trap‖ and further advance its economy, it must undertake fundamental reforms and move to complete its transition to a market economy.5 China and the U.S. recently demonstrated their shared interest in further promoting bilateral investment by announcing in May 2012, at the Fourth Meeting of the U.S.-China Strategic and Economic Dialogue (S&ED IV), their decision to restart negotiations on a bilateral investment treaty (BIT).6 BIT discussions are also under way between China and the European Union (EU).7 Foreign investors are closely watching these negotiations and other interactions between the governments on these issues, as they may directly affect market access and opportunities to do business in China. To fully understand and address the concerns of all of the interested parties in these discussions, it is necessary to understand the various elements of China‘s inbound investment approval process and the stages in the process where the perceived problems arise. This process potentially involves eight different types of approvals, though the process varies somewhat based on industry and locale, whether the investment is in certain services industries, and whether it involves the purchase of a strategic interest in a Chinese publicly traded company. The types of approvals and corresponding approval authorities are as follows: TYPE A: Anti-Monopoly Law Review of Concentrations Ministry of Commerce (MOFCOM) TYPE B: National Security Review MOFCOM and a Ministerial Panel TYPE C: Name Pre-Approval and Enterprise Registration Administration of Industry and Commerce

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China 2030: Building a Modern, Harmonious, and Creative High-Income Society, Development Research Center of the State Council and the World Bank Group, February 27, 2012, http://www.worldbank.org/en/news/2012/02/27/china-case-for-change-on-road-t-030 (Last accessed: September 9, 2012). 6

―Joint US-China Economic Track Fact Sheet - Fourth Meeting of the US-China Strategic and Economic Dialogue,‖ US Department of Treasury, May 4, 2012, http://www.treasury.gov/press-center/pressreleases/Pages/tg1567.aspx (Last accessed: September 8, 2012). 7

―China, EU to Seek Bilateral Investment Treaty,‖ Chinese Government‘s Official Web Portal, July 14, 2011, http://www.gov.cn/misc/2011-07/14/content_1906538.htm (Last accessed: September 8, 2012). Japan, Korea, and Canada have also recently completed investment agreements with China, though these agreements do not address market access issues.

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TYPE D: Local Site-Related Opinion Letters Land and Resources Department, Environmental Protection Department, Planning Department, and the State-Owned Assets Supervision and Administration Commission TYPE E: Project Approval National or local Development and Reform Commission or State Council TYPE F: Foreign Investment Approval MOFCOM or local Commerce Department TYPE G: Regulatory Approval Relevant industry regulator, if applicable TYPE H: Approval of Strategic Investment in a Chinese Publicly Traded Company MOFCOM and China Securities Regulatory Commission, if applicable According to interviews conducted under condition of anonymity with a number of foreign companies doing business in China, the four types of approval most likely to create market access, national treatment, and related challenges for potential foreign investors are the AntiMonopoly Law Review, Project Approval, Foreign Investment Approval, and Regulatory Approval. Moreover, the foreign companies interviewed reported three characteristics of China‘s foreign investment approval process that appear to foster and facilitate these challenges:    Industrial policies explicitly designed to support the development of domestic industries and the creation of national champions; Relatively opaque inbound FDI approval processes explicitly mandated to help China achieve its industrial policy goals; and Lack of effective recourse, in many cases, if aspiring foreign investors believe that the approval authorities have not complied with World Trade Organization (―WTO‖) commitments or China‘s own regulations, given difficulties with producing evidence and fears of retaliation if complaints are lodged against approval authorities.8

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U.S. Ambassador to the WTO Michael Punke raised the problem of retaliation in a speech on November 30, 2011, when he said, China‘s trading partners have heard from their enterprises on too many occasions that Chinese regulatory authorities threaten to withhold necessary approvals or take other retaliatory actions against foreign enterprises if they speak out against problematic Chinese policies or are perceived as responding cooperatively to their governments' efforts to challenge them.

(continued…) 8

Given these three characteristics of the approval process, the result has sometimes been the application of vaguely written or unpublished rules in ways that restrict or unreasonably delay market entry by foreign companies, including in industries where China has made market access commitments. In other cases, government regulators have, in effect, blocked foreign investment in specific industry sectors simply by failing to promulgate investment and licensing approval requirements applicable to foreign investors in those sectors, as in the case of electronic payment services. Other times, approval authorities have orally communicated deal-specific conditions for investment approval beyond those required by written law, clearly for the benefit of the local joint venture partner. Comparisons between China‘s inbound and domestic investment approval processes and between the inbound investment approval processes of China and the U.S. suggest that one way China could reform its current inbound investment approval processes could be to reduce the number of approvals required. For example, China could decide — 

To implement more fully the principle of national treatment by applying the same approval process for inbound investment that it applies to domestic investors (except that inbound investment would still be subject to a possible national security review, as is the case for inbound investment into the U.S.); or To implement more fully the principle of reciprocity by eliminating completely the two types of approvals required for China inbound investment that are most related to China‘s industrial policy goals and that are not required for inbound investment in the U.S. (namely, project approval by the national or local Development and Reform Commission or State Council, and foreign investment approval by MOFCOM or the local Commerce Department).



In recent years, a pattern also has seemed to emerge of the Chinese government‘s reflexive resort to trade actions in response to legitimate actions taken by the United States or other trading partners under their trade remedies laws. This type of conduct is at odds with fundamental principles of the WTO‘s rules-based system. The United States strongly urges China to eliminate any basis for these adverse perceptions. All WTO Members need to encourage — not discourage — foreign enterprises that want to shed light on policies they perceive to be problematic. And, if a WTO Member believes a trade action taken by another Member raises concerns, procedures provided by the WTO, such as the WTO‘s dispute settlement mechanism, are available to try to resolve those concerns. http://www.ustr.gov/about-us/press-office/press-releases/2011/november/remarks-united-states-ambassador-worldtrade-orga (Last accessed: September 17, 2012).

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Other avenues for reforming China‘s inbound investment approval process could be through improving transparency and the effectiveness of the administrative and judicial appeal processes. Options could include — 

Adopting further specific measures, in consultation with all stakeholders including foreign investors, to implement demonstrably and fully China‘s WTO and bilateral commitments related to transparency; Establishing clear criteria for administrative approval and denial; and Issuing strong assurances by senior leaders, with concomitant instructions to lower officials, that investors‘ use of these review processes will not be viewed negatively by China‘s approval authorities and will not be discouraged.

 

The ongoing U.S. and EU BIT negotiations with China provide an opportune context for exploring the necessity, benefits, and prospects of these and other possible reforms. The U.S. Model BIT, for example, sets out U.S. goals and expectations on a number of relevant issues important to investors, including ―National Treatment‖ (Article 3), ―Performance Requirements‖ (Article 8), ―Publication of Laws and Decisions Respecting Investment‖ (Article 10), ―Transparency‖ (Article 11), ―Review and Appeal‖ (Article 11(7)), and investor-state and statestate dispute settlement (Sections B and C). In each negotiation with a potential BIT partner, U.S. negotiators must seek agreement on a final text that achieves the substantive objectives of these provisions, while maintaining a balance of commitments that is acceptable to both parties. In BIT negotiations with China, this will require taking fully into account the characteristics of China‘s inbound FDI approval regime outlined in this report. 9 To the extent that China‘s economic policymakers believe that industrial policies favoring domestic companies over foreign investors are in China‘s best interest, China is unlikely to carry out the kinds of comprehensive reforms that foreign investors believe are needed to address their fundamental concerns. In this respect, some recent developments have not been encouraging to foreign investors. For example, the 2011 revisions to the Catalogue of Industries for Guiding Foreign Investment liberalize investment restrictions in only a small number of sectors and actually institute new limitations in others,10 while a new 2011 national security review for inbound FDI scrutinizes investments for their impact on economic security and social stability.11 9

For example, phrases such as ―wherever possible‖ and ―in accordance with domestic procedures‖ in Article 11(6) of the US Model BIT may prove too vague to ensure sufficient transparency in China‘s investment approval process, including ensuring that regulators adhere to reasonable timelines in approval decisions and provide rationales in writing for administrative decisions on particular covered investments. 10

Catalogue of Industries for Guiding Foreign Investment (2011 Revision) (National Development and Reform Commission and Ministry of Commerce, Order No. 12, 2011). See also ―Final 2011 Catalogue Offers Few New Openings for Foreign Investment,‖ The US-China Business Council - China Market Intelligence, January 11, 2012,

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However, foreign investors were heartened by China‘s S&ED IV commitments to: (i) ―implement a more proactive opening-up strategy and expand the areas open to foreign investment and the degree of openness‖; and (ii) develop ―a market environment of fair competition for enterprises of all kinds of ownership and to provide non-discriminatory treatment for enterprises of all kinds of ownership in terms of…regulatory policies.‖12 As China considers how best to implement these new commitments, foreign governments, industry associations, and individual companies will have greater impact if they can present hard economic data and compelling arguments showing that proposed policy changes and trade and investment agreements will contribute significantly to China‘s own economic development and more sustainable relations with its trade and investment partners. In the meantime, there are many related questions that could usefully be explored further. For example, this report does not include detailed analyses of Chinese approval policies and practices for specific industries where WTO commitments exist related to market access, national treatment, and elimination of trade-distorting conditions on investment. Nor does it include detailed comparisons between Chinese and U.S. approval policies and practices for such industries, or substantive economic analyses demonstrating the impact of different approaches on economic development. Such analyses and comparisons could help facilitate future constructive discussions on these topics between government officials and industry representatives from both countries.

II. CHINA’S WTO COMMITMENTS RELATED TO APPROVAL OF INBOUND FDI Before describing China‘s current approval process for inbound FDI in detail, it is useful to review the commitments China made with respect to this process as part of its accession to the WTO in December 2001. Although China‘s policies guiding investment in selected industries are generally not affected by its WTO accession agreements,13 China committed to eliminating https://www.uschina.org/members/publications/cmi/2012/january/11/02.html (Last accessed: September 17, 2012) (―The retention of many of the previous investment restrictions is disappointing, but not a surprise. Given China's desire to increase investment in the United States and other markets, however, the new catalogue represents a missed opportunity to reduce investment barriers at a time when investment issues are gaining more attention in the bilateral relationship.‖) 11

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, Section 1 (General Office of the State Council, Order No. 6, 2011). 12

―Joint US-China Economic Track Fact Sheet - Fourth Meeting of the US-China Strategic and Economic Dialogue,‖ US Department of Treasury, May 4, 2012, http://www.treasury.gov/press-center/pressreleases/Pages/tg1567.aspx (Last accessed: September 8, 2012). 13

China‘s accession agreements include the Protocol on the Accession of the People‟s Republic of China

(continued…) 11

certain trade-distorting conditions on investment, to granting market access and national treatment to foreign companies in a wide range of industries, and to improving overall transparency in the investment approval process. These commitments are memorialized in the Report of the Working Party on the Accession of China (Working Party Report), and most relate to the WTO‘s General Agreement on Trade in Services (GATS). Specific commitments include the following:

A. Elimination of Trade-Distorting Conditions on Investment In response to concerns expressed by other WTO members, the Working Party Report reflects China‘s commitment to ensure that permission for investment in general — . . . would not be conditional upon performance requirements set by national or subnational authorities, or subject to secondary conditions covering, for example, the conduct of research, the provision of offsets or other forms of industrial compensation including specified types or volumes of business opportunities, the use of local inputs, or the transfer of technology. 14 China also committed that ―consistent with its obligations under the WTO Agreement and the Draft Protocol, the freedom of contract of enterprises would be respected by China,‖15 and ―the terms and conditions of technology transfer, production processes, or other proprietary knowledge, particularly in the context of an investment, would only require agreement between the parties to the investment.‖16 In addition, ―permission to invest . . . would be granted without regard to the existence of competing Chinese domestic suppliers.‖17

B. Market Access Market access commitments related to inbound FDI are described primarily in China‘s Schedule of Specific Commitments on Services (Services Schedule), which is an annex to the Protocol on the Accession of the People‟s Republic of China (Protocol).18 Except as otherwise expressly (WT/L/432, November 23, 2001) and the Report of the Working Party on the Accession of China (WT/ACC/CHN/49, October 1, 2001). 14 15 16 17 18

Working Party Report, Para. 203. Ibid. Ibid., Para. 49. Ibid., Para. 203.

Annex 9 of the Protocol, Schedule of Specific Commitments on Services List of Article II Exemptions, circulated in documents WT/ACC/CHN/49/Add. 2 and WT/MIN(01)/3/Add. 2.

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specified in the Services Schedule or elsewhere in the accession agreements,19 China committed to grant broad market access and national treatment to foreign companies in specific services sectors listed in the Services Schedule, including through the establishment of a ―commercial presence‖ in China. Given that market access in some service sectors is conditioned in the Services Schedule upon the foreign party entering into a joint venture with a local Chinese party, some members of the WTO Working Party ―expressed concern regarding the existing practice of imposing conditions on the Chinese companies that were allowed to partner with foreign service suppliers,‖ noting that ―this could amount to de facto quotas, as the number of potential partners meeting those conditions might be limited.‖20 To address this concern, ―China confirmed that a foreign service supplier would be able to partner with any Chinese entity of its choice, including outside the sector of operation of the joint venture, as long as the Chinese partner was legally established in China.‖ In such cases, the joint venture would be required ―to meet the prudential and specific sectoral requirements, on the same basis as those for domestic enterprises,‖ and that these requirements ―must be publicly available.‖21 Outside of the service sectors, specific market access commitments were also made with respect to investment in the automotive sector.22

C. National Treatment For sectors included in the Services Schedule, China committed to accord ―services and service suppliers of any other [WTO] Member, in respect of all measures affecting the supply of services, treatment no less favorable than that it accords to its own like services and service suppliers,‖ unless exceptions to national treatment are specified in the Services Schedule for the particular sector.23 For example, in some sectors, China provided in the Services Schedule that foreign service providers — including those operating through a commercial presence in China — must meet specific professional qualifications or follow licensing procedures that differ from those required for domestic suppliers.

19 20 21 22 23

For example, in Annex 1, licensing criteria for basic telecommunications services were specified. Working Party Report, Para. 314. Ibid. Ibid., Paras. 204-207. GATS, Art. XVII.

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D. Transparency In addition to making generally applicable commitments to improve transparency following accession to the WTO,24 China committed to ―ensure that China's licensing procedures and conditions would not act as barriers to market access and would not be more trade restrictive than necessary.‖25 In addition, China committed that for those services included in the Services Schedule, it would ensure that —      ―China's licensing procedures and conditions were published prior to becoming effective; In that publication, China would specify reasonable time frames for review and decision by all relevant authorities in China's licensing procedures and conditions; Applicants would be able to request licensing without individual invitation; Any fees charged . . . would be commensurate with the administrative cost of processing an application; The competent authorities of China would, after receipt of an application, inform the applicant whether the application was considered complete under China's domestic laws and regulations and in the case of incomplete applications, identify the additional information that was required to complete the application and provide the opportunity to cure deficiencies; Decisions would be taken promptly on all applications; If an application was terminated or denied, the applicant would be informed in writing and without delay the reasons for such action…[and] would have the possibility of resubmitting, at its discretion, a new application that addressed the reasons for termination or denial; If an application was approved, the applicant would be informed in writing and without delay . . . .‖26

 



In addition, China agreed that for services included in the Services Schedule, ―relevant regulatory authorities would be separate from, and not accountable to, any service suppliers they regulated.‖27

24 25 26 27

Working Party Report, Paras. 324-336, and Protocol, 2(C). Working Party Report, Para. 308. Ibid. Ibid., Para. 309. Exceptions were carved out for courier and railway transportation services.

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E. Appeal Process In the event that an application for inbound foreign investment is denied, China committed to ―maintain tribunals, contact points, and procedures for the prompt review of all administrative actions.‖28 Moreover, ―such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.‖29 The review procedures ―shall include the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review.‖ Moreover, ―if the initial right of appeal is to an administrative body, there shall in all cases be the opportunity to choose to appeal the decision to a judicial body. Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing.‖30

III. CHINA’S APPROVAL PROCESS FOR INBOUND FDI
This section describes the inbound FDI approval process as set forth in China‘s published laws and regulations. As noted in Section VI, the actual implementation of the process may vary in specific cases depending on the context of a particular investment project and local rules and practices.

A. Pre-Establishment Approval Process 1. Foreign Investment Catalogue A starting point for understanding China‘s regulatory framework for inbound FDI is the Catalogue of Industries for Guiding Foreign Investment (Foreign Investment Catalogue or Catalogue).31 Maintained by MOFCOM and the National Development and Reform Commission (NDRC) under the authority of the State Council,32 the Catalogue is a lengthy 28 29 30 31

Protocol, 2(D). See also Working Party Report, Paras. 76-79. Ibid. Ibid.

Catalogue of Industries for Guiding Foreign Investment (2011 Revision) (National Development and Reform Commission and Ministry of Commerce, Order No. 12, 2011). See also Catalogue of Priority Industries for Foreign Investment in Central and Western China (2008 Revision) ( National Development and Reform Commission and Ministry of Commerce, Order No. 4, 2008) (addressing planned investments in China‘s noncoastal regions as part of China‘s ―Great Western Development Strategy‖). 32

Provisions Guiding Foreign Investment Direction, Art. 3 (State Council, Order No. 346, 2002).

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document that subdivides industries into ―encouraged,‖ ―restricted,‖ and ―prohibited‖ categories. (Industries not specifically listed within the Catalogue are considered permitted by default. 33) The Catalogue thereby promotes foreign investment in certain industries while limiting or altogether prohibiting foreign investment in others. The Catalogue was most recently amended in December 2011. An industry‘s designation in the Catalogue carries implications beyond whether foreign investment is permitted. Different designations often lead to different levels of approval scrutiny or tougher application requirements for prospective investors. For example, foreign investment in ―restricted‖ industries is often subject to stricter government review and more burdensome application requirements, which may prolong government approvals for prospective investors. Foreign investment in ―encouraged‖ industries, on the other hand, may be subject to less stringent government review or tariff exemptions.34 In addition to industry classification, the Catalogue may require that investment take certain forms and/or that the foreign shareholder‘s proportion of investment in the enterprise be limited. For example —  Following the Catalogue‘s listing of an industry, a parenthetical may indicate that the investment is ―limited to Sino-foreign equity/cooperative joint venture operations‖ or ―limited to Sino-foreign equity joint venture operations.‖ The parenthetical may also indicate that the Chinese partners must be ―controlling shareholders‖ or may limit the proportion of foreign investment to an amount not exceeding 49% or 50% of total equity.



2. Industrial Policies The categorizations and conditions in the Foreign Investment Catalogue are largely based on China‘s industrial policies, which are set forth in various guiding documents, including the fiveyear plans (FYPs) that lay out China‘s economic and development goals for given five-year periods. In March 2011, the nation‘s 12th FYP was released following its approval at the annual meeting of the National People‘s Congress. While the 12th FYP focuses on a number of important social and economic issues, the core of its economic objectives rests on a planned restructuring of the domestic economy to encourage domestic consumption, the development of a domestic services sector, higher value-added manufacturing, and improved environmental

33 34

Ibid. Art. 4.

Announcement on Implementing the Catalogue of Industries for Guiding Foreign Investment (2011 Revision) (General Administration of Customs, Announcement No. 4, 2012).

16

protection. The plan also encourages the creation of ―national champions,‖35 especially in socalled ―strategic emerging industries.‖36 Industrial policies may, in fact, trump corresponding Catalogue provisions. For...

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undergon undersea understand undertak undertaken unequ unfair unfavor unilater union unirul unit unlaw unless unlik unnecessari unoc unpublish unreason unrestrain unsatisfi unsuccess unwind unwritten updat upgrad upon urban urg us us-china use ustr usual util v vagu valid valu valuabl value-ad vari variabl varianc varieti various vast vehicl ventur venture.85 verif vi via vice vice-governor vice-minist vicin video vie view vigor vii viii violat voic vol volp volum voluntari voluntarili vote w waishang wait walker wane want war warrant warranti watch water waterman way web web.resource.amchamchina.org web.resource.amchamchina.org/cmsfile/2012/03/26/c46fc22667c5eeb231748808a9244027.pdf web.resource.amchamchina.org/cmsfile/2012/04/23/2ce923096d78256cc9b475f41d07f0d1.pdf web.resource.amchamchina.org/cmsfile/2012/04/23/77548053403ed8f91b958261a2118c2a.pdf websit week welcom well went western wfoe whenev wherea wherev whether white whole wholes wholli whose wide widespread wisdom wish withdrew withhold within without word work world worldwid worsen worth worthi would write written wt/acc/chn/49 wt/acc/chn/49/add wt/ds413/r wt/l/432 wt/min wto www.bjpc.gov.cn www.bjpc.gov.cn/bsdt/bszn/xk/201009/t686417.htm www.bloomberg.com www.bloomberg.com/news/2012-08-16/china-s-july-fdi-falls-8-7-from-year-earlier-to-7-58-billion.html www.europeanchamber.com.cn www.europeanchamber.com.cn/upload/media/media/14/european_chamber_business_confidence_survey_2 www.gov.cn www.gov.cn/2011lh/content_1825838_2.htm www.gov.cn/misc/2011-07/14/content_1906538.htm www.kapronasia.com www.kapronasia.com/en/insight/221-top-5-current-trends-in-china-s-payments-industry www.oecd-ilibrary.org www.oecd-ilibrary.org/sites/factbook-2011en/04/02/01/index.html?contenttype=&itemid=/content/chapter/factbook-2011-38en&containeritemid=/content/serial/18147364&accessitemids=&mimetype=text/h www.oecd.org www.oecd.org/daf/internationalinvestment/investmentstatisticsandanalysis/oecdbenchmarkdefinitionofforeign www.pcworld.idg.com.au www.pcworld.idg.com.au/article/388176/alibaba_online_payment_service_granted_chinese_license/ www.presidency.ucsb.edu www.presidency.ucsb.edu/ws/index.php?pid=18108 www.reuters.com www.reuters.com/article/2011/12/17/us-wto-usa-china-idustre7bg0j520111217 www.reuters.com/article/2012/07/13/us-china-economy-gdp-idusbre86c04220120713 www.treasury.gov www.treasury.gov/press-center/pressreleases/pages/tg1567.aspx www.uscc.gov www.uscc.gov/annual_report/2011/11report_chapters.php www.uscc.gov/researchpapers/2011/10_26_11_capitaltradesoestudy.pdf www.uschina.org www.uschina.org/members/publications/cmi/2012/january/11/02.html www.ustr.gov www.ustr.gov/about-us/press-office/press-releases/2011/november/remarks-united-states-ambassador-worldtrade-orga www.worldbank.org www.worldbank.org/en/news/2012/02/27/china-case-for-change-on-road-t-030 wzzxbs.mofcom.gov.cn wzzxbs.mofcom.gov.cn/app/entp/guide x xi xiangmu xingzheng xinhua xinx xuanzhi xuke xukezheng xvii yahoo yangqi 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