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  • Writer's pictureBrent Yap

China's New Foreign Investment Laws : A Level Playing Field for Foreign Investors

The China Laws Series. 24 March 2023

Introduction


China's economic and foreign investor policies have undergone significant changes in the past few years, particularly in response to the COVID-19 pandemic. The government has introduced several measures aimed at stabilizing the economy, supporting SMEs, and attracting more foreign investment. With the introduction of the new Foreign Investment Law and other measures aimed at improving the business environment for foreign investors, China plans to remain an attractive destination for foreign businesses looking to expand their operations in the region. The new Foreign Investment Laws of 2020 have now created a level playing field for foreign investors and foreign businesses alike in China.


This article will provide an overview of the economic and foreign investor policies of China from 2020 to the present day as well as what is in the new Foreign Investment Laws.


Sustaining the Covid economic challenges


In 2020, China faced significant economic challenges due to the COVID-19 pandemic. China's economy contracted by 6.8% in the first quarter of 2020 due to the COVID-19 pandemic. However, the Chinese government quickly implemented measures to support the economy, such as tax cuts, infrastructure spending, and monetary easing. By the second quarter of 2020, China's economy had started to recover, and by the end of the year, it had grown by 2.3%.


In the first quarter of 2021, China's economy grew by 18.3% compared to the same period in 2020, which was partly due to the low base in 2020. However, even when compared to the first quarter of 2019 (pre-pandemic), China's economy still grew by 0.6%. This growth was driven by strong export demand, increased infrastructure investment, and a rebound in consumer spending. To combat the economic impact of the pandemic, the Chinese government introduced several economic policies aimed at stabilizing the economy and supporting businesses.


Economic Policies


The Chinese government has implemented several economic policies to support the post-COVID recovery. These policies include:

  1. Fiscal Stimulus: The Chinese government has implemented fiscal stimulus measures, such as tax cuts and increased spending on infrastructure projects, to support economic growth.

  2. Monetary Easing: The People's Bank of China has implemented monetary easing measures, such as cutting interest rates and reducing reserve requirements, to support credit growth and boost the economy.

  3. Foreign Investment: China has continued to open up its economy to foreign investment, with the introduction of the Foreign Investment Law in 2020. This law aims to create a more transparent and predictable regulatory environment for foreign investors and to encourage further foreign investment in China.


Other key policies introduced include a stimulus package worth approximately $500 billion, which included measures such as tax relief, reduced fees for businesses, and increased government spending on infrastructure projects. The government also introduced measures to support small and medium-sized enterprises (SMEs), including subsidies and loans to help them weather the economic downturn.


In addition, the Chinese government introduced policies aimed at increasing domestic consumption, such as the "dual circulation" strategy, which emphasizes both domestic and international demand. This strategy aims to reduce China's dependence on foreign markets and increase its self-sufficiency.


Foreign Investor Policies


Nonetheless, China has long been an attractive destination for foreign investors and so with the aim to be one of only two global economic superpowers in the near future, the country's government has made significant changes to its foreign investor policies in recent years.


One of the key measures was the introduction of a new Foreign Investment Law, which came into effect in January 2020. This law aims to create a more transparent and predictable legal environment for foreign investors and to protect their intellectual property rights.


The Chinese government also introduced measures aimed at streamlining the approval process for foreign investment projects, including the establishment of a new online platform for foreign investors to submit applications.


In addition, the Chinese government has opened up several key sectors to foreign investment, including finance, healthcare, and education. The government has also announced plans to further open up the financial sector to foreign investors, including the removal of limits on foreign ownership of financial institutions.


Overview of the Foreign Investment Law


The Foreign Investment Law (FIL) 2020 replaced three existing laws, including the Law on Sino-Foreign Equity Joint Ventures, the Law on Wholly Foreign-Owned Enterprises, and the Law on Sino-Foreign Contractual Joint Ventures. The FIL provides a unified legal framework for foreign investment in China and aims to improve the transparency and predictability of the regulatory environment for foreign investors.


The FIL applies to all types of foreign investment in China, including equity investment, contractual investment, and other forms of investment. It establishes a registration-based system for foreign investment, which means that foreign investors only need to register their investments with the relevant authorities rather than obtaining approval.


The FIL also provides a level playing field for foreign investors and domestic investors by prohibiting discriminatory treatment of foreign investors. It requires that the Chinese government treat foreign investors in the same way as it treats domestic investors. This means that foreign investors can participate in the same industries and activities as domestic investors, and they are subject to the same laws and regulations.


Key Provisions of the Foreign Investment Law


There are several key provisions of the FIL that are important for foreign investors to understand. These include:


National Security Review

The FIL establishes a national security review mechanism for foreign investment. The national security review is designed to ensure that foreign investment does not threaten China's national security. The review process is conducted by a committee led by the Ministry of Commerce and includes representatives from other government agencies.


Equal Treatment:

Foreign investors are now treated the same as domestic investors in most cases. This means that foreign investors have access to the same investments.


Negative List

The FIL introduces a negative list system for foreign investment. The negative list specifies industries and sectors in which foreign investment is restricted or prohibited. Foreign investors are allowed to invest in all other industries and sectors.


Intellectual Property Protection

The FIL includes provisions to protect the intellectual property rights of foreign investors. It requires that the Chinese government provide effective protection of intellectual property rights and prohibits the forced transfer of technology.


Investment Promotion

The FIL includes provisions aimed at promoting foreign investment in China. It requires that the Chinese government provide a fair and transparent investment environment and promote foreign investment through policies and measures.


Implications and benefits for Foreign Investors


The Foreign Investment Law has important implications for foreign investors in China. One of the key benefits of the FIL is that it simplifies the regulatory environment for foreign investors. The registration-based system means that foreign investors no longer need to obtain approval for their investments, which can save time and reduce costs.


The national security review mechanism introduced by the FIL may create some uncertainty for foreign investors, as the scope of the review is not clearly defined. However, the FIL provides some guidance on the factors that will be considered in the review process, such as the impact on national security and the potential for technology transfer.


The negative list system introduced by the FIL may limit the scope of foreign investment in some industries and sectors. However, the negative list is expected to become shorter over time as the Chinese government continues to open up its economy to foreign investment.


The FIL also seeks to overcome the complicated intellectual property protection registration procedure to provide more protection for intellectual property rights, which benefits foreign businesses that invest in China. This includes protection for patents, trademarks, and copyrights, which were previously difficult to enforce in China.


The following are some recent examples of foreign companies' experience under the FIL :

  • Tesla: In 2020, Tesla was able to build and operate a wholly-owned factory in Shanghai, which was made possible by the FIL. The factory has been operating successfully, and Tesla has been able to sell its electric vehicles in China without any joint venture partners.

  • BASF: The German chemical company BASF was able to set up a $10 billion chemicals complex in Guangdong province in 2020. This facility will be one of the largest foreign investments in China, and will include a petrochemical plant, a steam cracker, and other related facilities.

  • Siemens: The multinational engineering company Siemens has set up a gas turbine manufacturing plant in Hengyang province. This has enabled Siemens to expand its operations in China and create new jobs in the country.

Conclusion


The Foreign Investment Law is an important development for foreign investors in China. It provides a more transparent and predictable legal environment for foreign investment and aims to create a level playing field for foreign investors and domestic investors. While the FIL introduces some new challenges for foreign investors, it also provides important benefits, such as simplifying the regulatory environment and protecting intellectual property rights. Overall, the FIL is a positive development for foreign investment in China and is expected to encourage further foreign investment in the country.


The China Laws Series in our ongoing weekly series published every Friday to talk about the different laws in the China concerning businesses, foreign investments and the related laws and regulations promulgated to provide a helpful and reliable guide whether you are seeking to be employed in the China or doing business in the PRC. This is not intended to substitute a qualified PRC's lawyer or legal consultant's legal advice. Our legal partners in the PRC are ready on hand to assist you in all of your enquiries and needs. You can email me at brentyap@vikneshyap.com to know more.

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