Administrative Measures On Approval Of Overseas Investment Projects And Record

Original Language Title: 境外投资项目核准和备案管理办法

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201503/20150300398566.shtml

Administrative measures on approval of overseas investment projects and record

    (April 8, 2014, national development and Reform Commission released 9th May 8, 2014) Chapter I General provisions

    First to promote and standardize the overseas investment to speed up overseas investment management functions, according to the People's Republic of China on administrative licensing law, decisions of the State Council on the reform of investment system and the administrative examination and approval items really necessary to be retained by the State Council to set administrative licensing decision, these measures are formulated.

    Second approach applies to People's Republic of China territory of all kinds of legal entities (hereinafter "investor") to create a new, mergers and acquisitions, equity participation, increased funding and capital injections and other forms of overseas investment projects, and investors to provide financing or guaranteed by foreign enterprises or institutions of foreign investment projects.

    Third overseas investment projects in these measures refers to investors through investment currency, securities, real property, intellectual property or technology, equity, debt and other assets and rights or guarantees from foreign ownership, management, and other relevant activities of interest.

    Article Fourth Chinese investments in these measures refers to the investment projects for overseas investment of money, securities, real property, intellectual property or technology, equity, debt and other assets and the amount of equity or guarantees.

    Fifth State depending on the circumstances imposed on overseas investment projects were approved and file management.

    Sixth national development and Reform Commission (hereinafter "the national development and Reform Commission") with the relevant departments to step up the overseas investment macro-instructions, to guide and comprehensive services, and through bilateral and multilateral cooperation and dialogue mechanism for investors to implement foreign investment projects to create a favourable external environment.

    Chapter approval and filing authority and privileges Seventh over Chinese investment of 1 billion US dollars and foreign investment projects approved by the national development and Reform Commission. Sensitive countries and regions, regardless of their quota of overseas investment projects in sensitive sectors, approved by the national development and Reform Commission.

Among them, China invested 2 billion US dollars and above, and involves sensitive countries and regions, overseas investment projects in sensitive sectors, audit observations made by the national development and Reform Commission reported to the State Council for approval.

Sensitive countries and regions included in these measures: not established diplomatic ties with countries subject to international sanctions, wars, civil strife and other countries and regions.

    Sensitive sectors in these measures include: basic telecommunications, utilization of transboundary water resources, massive land development, transmission lines, power grids, the news media and other industries. Eighth article of the way article seventh overseas investment projects management.

    Among them, the central management of enterprises ' overseas investment projects, local enterprises to implement the Chinese investment of 300 million US dollars of overseas investment projects and above, by the national development and Reform Commission for the record local enterprises to implement Chinese investment of 300 million US dollars of overseas investment projects, from various provinces, autonomous regions, municipalities and separately listed cities and Xinjiang production and construction Corps and other government departments at the provincial level. Nineth for overseas investment projects preliminary work cycle longer, upfront fees required (including performance bonds, guarantee fees, agency services, resource exploration,) larger, according to the needs of the existing foreign exchange regulations, investors may refer to the article seventh to eighth on the item upfront fees to apply for approval or for the record.

    The project charged to project approval or for the record Chinese investment. Tenth China overseas investment of 300 million US dollars and over buying or bidding projects, foreign investment subject to carry out substantive work, project information should be submitted to the national development and Reform Commission reported. After the national development and Reform Commission received reports of project information, in line with national policy on overseas investment projects, in the letter of confirmation within 7 working days.

Project information format version of the report released by the national development and Reform Commission. Overseas acquisitions in these measures refers to investment subject to agreement, offer for acquisition of overseas enterprises, including all or part of the stock, assets or other interests in the project.

Overseas bidding projects, refers to the investor to participate in overseas open or not open competitive bidding to obtain overseas enterprise all or part of the stock, assets or other interests in the project.

    External to undertake substantive work in these measures, foreign acquisitions mean signing a binding agreement, make binding offers and the Government censors to apply to other countries or regions, foreign bidding project refers to external formal bids.

    Chapter approval and filing procedures and conditions

    11th by the national development and Reform Commission approved or proposed by the national development and Reform Commission review comments submitted to the State Council approved overseas investment projects, local businesses have direct access to the seat of the provincial development and reform Government departments submit project application report, approved by the provincial development and reform proposed by the Government the views submitted to the State development and Reform Commission; central management of enterprises by a group or Corporation project application report submitted to the national development and Reform Commission. 12th project applications submitted to the national development and Reform Commission report includes project name, investor, need analysis, the project background and the investment environment, and risk analysis of project investment and financing programmes, contents, and so on.

Model outline project application report released by the national development and Reform Commission.

Project application report shall be attached to the following annexes:

(A) resolution or funding related to the resolution of the Board of the company;

(B) investment and foreign assets, operations and credit file;

(C) letter of intent for bank financing;

(Four) to securities, and real, and intellectual property or technology, and equity, and claims, assets interests funded of, by assets interests of assessment value or fair value approved funded amount, and should submitted has corresponding qualification of Accountants firm, and assets assessment institutions, intermediary institutions issued of audit report, and assets assessment report and the right to institutions of confirmed letter, or other can proved about assets interests value of third party file;

    (E) bid, merger or joint venture projects, China signed a letter of intent to be submitted or framework agreements and other documents.

    Article 13th project application report and is not complete or does not comply with the requirements of the annex, the national development and Reform Commission, within 5 working days once told the applicant be corrected.

    Article 14th involving sensitive countries and regions, the overseas investment projects in sensitive sectors, the national development and Reform Commission in accepting project applications within 3 business days from the date of the report in consultation with interested departments, departments concerned shall, on the date of receipt of the letter of comment issued within 7 business days from written comments. 15th after the national development and Reform Commission accepts project application report, if necessary, should be commissioned within 5 working days qualified advisory bodies for evaluation. Entrusted to an advisory body within the prescribed assessment report, and take responsibility for assessment.

In principle, the period under review no more than 40 working days.

    Assessment of costs borne by the national development and Reform Commission, advisory bodies and their staff shall not charge any of the applicant or investment costs. 16th national development and Reform Commission from the date of acceptance of the project application report, in line with the conditions of approval of overseas investment projects completed within 20 working days, or the audit opinion submitted to the State Council for approval.

20 working days cannot make an approval decision or the audit opinion, approved by the head of the national development and Reform Commission extended by 10 working days, and inform applicants of the reasons for the extension.

    Approved period prescribed in the preceding paragraph, excluding the principal advisory body evaluation time.

    Article 17th projects approved by the national development and Reform Commission will issue a written authorization to applicants; the items that are not approved, will be decided to notify the applicant in writing and state the reasons, investors have the right to apply for administrative reconsideration or bring an administrative lawsuit in accordance with law.

18th conditions of the project approved by the State development and Reform Commission as follows:

(A) compliance with legal regulations and industrial policies, foreign investment policies;

(B) in accordance with the principle of mutual benefit and win-win and common development, does not endanger national sovereignty, security and the public interest, not in violation of international treaty concluded or acceded to by;

(C) in line with the national capital project management related requirements;

    (D) investment with the corresponding investment.

19th projects belongs to the national development and Reform Commission for the record, local enterprises should fill in the application form of overseas investment projects with relevant annexes, submitted directly to the seat of the provincial government's development and reform, by the provincial development and reform of the Government submitted to the national development and Reform Commission; central management by a group or company to the national development and Reform Commission shall submit the application form and relevant annexes.

    Application form for overseas investment projects for the record text and attachment requirements issued by the national development and Reform Commission.

    20th for the application form and attachments is not complete or does not comply with the requirements of, national development and Reform Commission, within 5 working days once told the applicant be corrected. Article 21st State development and Reform Commission accepted within 7 working days from the date of the application form, issued by the overseas investment projects eligible for record filing notice.

    No record of overseas investment projects, the national development and Reform Commission decided to notify the applicant in writing and state the reasons, investors have the right to apply for administrative reconsideration or bring an administrative lawsuit in accordance with law.

    22nd record of the State development and Reform Commission to apply for overseas investment projects, mainly within the scope record management, compliance with relevant laws and regulations, industrial policy and foreign investment policy is consistent with the capital project management-related regulations of the State, endangering national sovereignty, security, public interest, and whether investors have investment audit.

Article 23rd for overseas investment projects already approved or filed as a result of one of the following conditions, shall be in accordance with the provisions of this article seventh to eighth change application to the national development and Reform Commission:

(A) the size and content of the project change;

(B) the changes in investment or ownership structure;

    (C) the Chinese side invested over 20% and above in the original approval or for the record.

    Fourth chapter approval and filing effect Article 24th investors notice of approval or for the record, according to foreign exchange, customs, immigration and tax formalities.
For items that are not on the required competence and the procedure for approval or for the record, the departments concerned shall not go through relevant procedures, financial institutions shall not grant loans.

    25th investment implementation of the national development and Reform Commission approved or registered overseas investment projects, before signing a final legally binding document, shall obtain the approval documents issued by the national development and Reform Commission or filing notices or files can be signed clear conditions for the entry into force of law issued by the national development and Reform Commission approved document or notice of filing.

Article 26th approval documents and notice of filing should provide valid, one construction project approval documents and filing notice is valid for two years, project approval documents and notice of filing is valid for one year.

    Valid investor failed to complete the processing of formalities as referred to in article 24th of this approach, you should apply for the extension within 30 working days before the expiry.

    The fifth chapter legal liability

27th article of the staff of the national development and Reform Commission of the following acts, to order rectification, and according to the regulations on the punishment of civil servants of administrative organs and other relevant provisions of pursue the administrative responsibility of those responsible constitutes a crime, shall be investigated for criminal responsibility by judicial organs.

(A) abuse of authority, dereliction of duty and favoritism, bribes;

(B) violation of the procedure and conditions of project approval as provided herein, for the record;

    (C) other acts in violation of these rules. 28th investment overseas investment projects should be subject to the application report, or project responsible for the authenticity and legality of application form and attachments.

    Investment in reporting violations of laws and regulations in the process of overseas investment projects, withholding relevant information or provide false materials, approved by the national development and Reform Commission will not be accepted or not, for the record; notice of approval or for the record has been made, the national development and Reform Commission notice of revocation of the approval or for the record, and given a warning.

29th article for according to this approach provides investment subject should application handle approved or record but not law made approved file or record notice and unauthorized implementation of project, and not according to approved file or record notice content implementation of project, once found, national development reform Board will with about sector ordered its stop project implementation, and drew attention to the or transfer about organ law held about responsibility people of legal and administrative responsibility. For investment subject in accordance with article tenth of this approach should be submitted to the project information report but do not access to information report confirmation of its substantive work, the national development and Reform Commission will be criticized, ordered to correct.

    For serious nature, causing serious damage to national interests, the national development and Reform Commission, in conjunction with relevant departments in accordance with law, punishment, and drew attention to or handed over to the relevant authorities shall be investigated for criminal responsibility of the legal and administrative responsibilities.

    The sixth chapter supplementary articles Article 30th Provincial Government investment authorities to strengthen the local overseas investment guidance and services, drawing on appropriate management measures are formulated as provided herein.

    National development and Reform Commission on foreign investment project of the provincial government authorities for the record guidance and supervision, and found the problem to be corrected.

31st investors to invest in overseas equity or the establishment of equity funds, these measures shall apply.

    Outside of natural persons and other organizations in the implementation of investment projects, reference to these regulations further develop specific management approach.

Articles 32nd investors in Hong Kong S.A.R., and Macau S.A.R. implementation of investment projects, in accordance with the measures implemented.

    Investors in implementation of investment projects in Taiwan, separately in accordance with the measures provided to develop specific management approach.

    33rd article this way is responsible for the interpretation by the national development and Reform Commission. 34th article of the rules take effect on May 8, 2014. National development and Reform Commission promulgated in October 2004 of the interim measures for the administration of overseas investment projects (21st) repealed simultaneously.