Various government bodies are involved in oversee- ing different aspects of foreign investment, including the State Council, NDRC, MOFCOM, industry regulators, like the Civil Aviation Administration of China (“CAAC”), SAMR, and their respective local branches. Among these authorities, NDRC and MOFCOM are the most approval authorities for the establishment of FIEs counting on the industry and investment scale of an FIE.
PROJECT VERIFICATION OR RECORD-FILING WITH NDRC
NDRC formulates and implements macro-economic development strategies and plans, coordinates and supervises national economic development, and is liable for examining and approving foreign-invested projects from a macro-economic perspective. During the project approval stage, NDRC often seeks and coordinates opinions from other authorities – like the Ministry of Environment, on environmental protection issues, and therefore the Ministry of Land and Resources, ashore grants for foreign-invested projects.
Prior to June 2014, project verification with NDRC was technically required for any foreign investment projects, however, in practice, such a procedure may only are critical and implemented surely projects, like those within the infrastructure, energy, automobile sectors.
Since June 2014, NDRC has relaxed the project verification matrix for FIEs, the edge of which was further lowered by the State Council during the next years with the foremost recent one promulgated at the top of 2016. In most cases, the establishment of an FIE now only requires a record-filing with the local level NDRC.
INCORPORATION APPROVAL BY/FILING WITH MOFCOM
Since October 2016, the three-decade-long MOFCOM approval regime for the establishment of FIE has been replaced with a simplified file system for foreign investments in sectors that aren’t covered within the Negative List.
Due to such reform, MOFCOM is now liable for reviewing and approving the incorporation of FIEs that fall within the Negative List, also because of the filing of the incorporation of other FIEs.
For FIEs that are subject to MOFCOM approval, its constitutional documents, like the articles of association and venture contract, got to be submitted to MOFCOM for review, and are only effective once approved.
Whether foreign investors should obtain approvals from the central or local level of MOFCOM.
Once the project is approved, MOFCOM or its local branch will issue an approval reply and an approval certificate.
The MOFCOM filing process is far more straight- forward, which may be done along side the registration with SAMR. For filing purpose, apart from the essential information of the corporate and its investor(s), the FIE is required to disclose its ulti- mate controller (either a private , an inventory company or a governmental organ) and submit the chart showing the shareholding information from the FIE up to its ultimate control- ler. A filing receipt are going to be issued after the filing process is completed.
Apart from NDRC and MOFCOM, which are the most approving authorities, other government departments could also be involved within the approval procedure, particularly where there are limits on entry by foreign investors into a selected industry. for instance , pre-approval from the general public security authority is required for investment in Security Service industry. Pre-approval is additionally required from China Securities Regulatory Commission for invest- ment in security companies.
In recent years, variety of pre-approvals (such as because of the drug production approval and therefore the food operation approval) are not any longer required to be obtained before the incorporation. Instead, investors should obtain a business licence first then apply for such approvals before the FIE actually commences relevant business.
REGISTRATION WITH SAMR
After obtaining the specified pre-approvals (if any), investors will get to register the FIE with SAMR or its local branch, for the issuance of a business license. the difficulty date specified on the business
depends on the quantity of investment they create.
All business entities should maintain records of corporate documents and basic information – including those regarding directors and shareholders – with SAMR or its local branches. Companies are required to finish an online filing with SAMR annually, providing its basic information and knowledge associated with its employees, and certain statistics on its financial statements. the essential information of the corporate field is out there for public inspection at an internet site maintained by SAMR.
SAMR and its local counterparts also oversee initial approvals for investment in special industries like advertising.
Post-Incorporation Approval and Registration
Once the FIE’s business license has been issued, the FIE is required to finish various post-incorporation approvals required by industry regulators (if any) and other registrations including tax landing, exchange registration, and customs registration.