CHINA Law and Practice Contributed by: Wei Chen, Yue Zhang, Hao Peng and Yi Sun, JunHe LLP
Export licence An export licence is required for the export of items in the controlled or temporary list, or items that may: • endanger national security or national inter- est; • be used in the design, development, produc- tion or use of weapons of mass destruction or their means of delivery; or • be used for terrorist purposes. However, China’s export controls generally regu- late the export of technology or products. It is not usually a major concern in foreign invest- ment where the technology or products are usually imported into China, rather than being exported overseas. 7.5 Antitrust Regulations Under the PRC Monopoly Law (the “AML”) and the State Council Regulation on the Notification Thresholds for Concentration of Business Oper- ators (the “Notification Thresholds Regulations”), if a business operator acquires control over other business operators through the acquisi- tion of shares and/or assets, the transaction is a “concentration of business operators”, and if the transaction meets the turnover thresholds, the transaction is notifiable to China’s State Admin- istration for Market Regulation (the “SAMR”). The “concentration of business operators” refers to: • a merger of business operators; • a business operator acquiring control over another business operator through equity or asset acquisition; or • a business operator acquiring control over another business operator or being able to impose decisive influence over another
(c) equipment manufacturing; (d) infrastructure; (e) transport services; (f) cultural products and services; (g) information technology and internet prod- ucts and services; (h) financial services; (i) key technologies; and (j) other important fields relating to national security, whereby the actual control of the invested companies vests in the foreign investor. Specifically, the “actual control” of the invested companies refers to: • where the foreign investor holds at least 50% of the equity of the invested companies; • where the foreign investor holds at least 50% of the equity of the invested companies, but has voting rights that have a material effect on the resolutions of the board of directors and shareholders’ meeting/shareholders’ assembly; and • where the foreign investor is otherwise able to have a material effect on the decision-mak- ing, human resources, finance, and technol- ogy of the invested companies. Export Control There is an export control regime in China that can be divided into the following three elements. Controlled list This is a regular list maintained by the relevant regulatory body listing the controlled items. Temporary list For items not included in the controlled list, the relevant regulatory body may impose temporary control for up to two years.
77
CHAMBERS.COM
Powered by FlippingBook