China’s Foreign Investment Law that came into effect from the 1st of January 2020 may have a positive impact for foreign investors. The new FIL is providing a more level playing field and giving enhanced investor protections. In the opinion of the expert China business lawyers, Chinese authorities have taken a streamlined approach to the supervision of foreign investment in the new FIL. The new law will further expand the scope of China’s reform and opening-up.
The investment Quota limitations of QFII and RQFII had been removed. Previously, China’s government always had strict rules on how foreign investors work in China’s capital market. The Implementation Regulations provide that government agencies shall not discriminate against foreign investors regarding required permits or licenses unless laws or regulations provide otherwise.
Key Changes in China’s new Foreign Investment Law-
The Combination of Three Laws
According to Article 42 of the Foreign Investment Law, the law will replace the three older laws beginning 1 January 2020. In other words, the Foreign Investment Law will apply to all wholly foreign-owned enterprises, Chinese-foreign equity joint ventures and Chinese-foreign contractual joint ventures.
Room for Equal Participation
Foreign companies are entitled to equal participation as their domestically-invested peers in the formulation and revision of national, industrial and local standards in accordance with the law. They can make standards-related recommendations and undertake such work as setting standards.
Changes in Corporate Governance
The FIL provides a 5-year grace period for FIEs whose corporate governance is inconsistent with the Company Law, Partnership Law or other business organization laws to come into compliance. JVs will also be able to retain some flexibility after the 5-year period.
Article 16 is amended
“The state shall ensure that foreign-invested enterprises participate in government procurement activities through fair competition in accordance with the law. The government shall, in accordance with the law, give equal treatment to products and services produced and provided by foreign-invested enterprises within the territory of China in government procurement. This means that government procurement includes both goods and services.
To appropriately deal with the FIL, foreign investors in China should:
Actively monitor developments in the as-yet incomplete new framework.
Strategize on how to comply with the FIL and leverage benefits under the FIL when undertaking a new investment.
Have a plan for adjusting the structures and constituent documents of your FIE subsidiaries.
Be ready to follow the new foreign investment reporting system under the FIL.
The intellectual property rights of foreign businesses are protected in a better way. Conditions for technology cooperation shall be determined by all investment parties upon negotiation under the principle of equity. No administrative department or its staff member shall force any transfer of technology by administrative means.