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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II EXAMINATION AND APPROVAL ORGANS AND LIMIT OF AUTHORITY CHAPTER III EXAMINATION AND APPROVAL PROCEDURES CHAPTER IV PROJECT APPLICATION REPORT CHAPTER V EXAMINATION AND APPROVAL CONDITIONS AND VALIDITY CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures are formulated according to the Administrative License Law of the People's Republic of China and the Decision of the State Council on Reforming the Investment System for the purpose of regulating the administration of the examination and approval of overseas investment projects. Article 2. The present Measures shall be applicable to the examination and approval of overseas investment projects (including new establishment, merger, purchase of stocks, increase in capital and reinvestment) of all kinds of artificial persons within the territory of the People's Republic of China (hereinafter referred to "investors"), and through their overseas holding enterprises or organs. The present Measures shall be applicable to the examination and approval of the investors' investment projects in Hong Kong and Macao Special Administrative Regions and in Taiwan. Article 3. The "overseas investment projects" referred to in the present Measures are those ventures which the investors activate to obtain the overseas ownership, power of operation and management and other related rights and interests by pouring the money, securities, material objects, intellectual property or technology, stock rights, creditor's rights and other assets and rights and interests, or by offering the security. CHAPTER II EXAMINATION AND APPROVAL ORGANS AND LIMIT OF AUTHORITY Article 4. The overseas investment projects of resource development and the overseas investment projects using large amount of foreign exchange shall be subject to the examination and approval of the State. The projects of resource development refer to the projects invested overseas to explore for and exploit resources such as crude oil and mines. Among them, the projects with the Chinese party's investment amount of 30 million dollars or more shall be subject to the examination and approval of the National Development and Reform Commission, and the projects with the Chinese party's investment amount of 200 million dollars or more shall be subject to the examination of the National Development and Reform Commission, and then be reported to the State Council for examination and approval. The overseas investment projects using large amount of foreign exchange refer to the overseas investment projects, outside the fields prescribed in the preceding paragraph, with the Chinese party's foreign exchange amount of 10 million dollars or more, and this kind of projects shall be subject to the examination and approval of the National Development and Reform Commission, and the projects with the Chinese party's investment amount of 50 million dollars or more shall be subject to the examination of the National Development and Reform Commission, and then be reported to the State Council for examination and approval. Article 5. The projects of resource development with the Chinese party's investment amount of 30 million dollars or less and other projects using the foreign exchange of 10 million dollars or less by the Chinese party shall be subject to the examination and approval of the provincial development and reform departments of all provinces, autonomous regions, municipalities directly under the Central Government, the cities directly under state planning and Sinkiang Production and Construction Corp., and the power to examine and approve the projects shall not be transferred to the lower level departments. In order to immediately master the information of the examination and approval of the projects, all provincial development and reform departments shall submit a copy of the documents of the examination and approval of the projects to the National Development and Reform Commission within 20 working days computed from the date of examination and approval. In case the local governments have otherwise prescribed for the examination and approval of the projects listed in the preceding paragraph, such prescriptions shall prevail. Article 6. For the enterprises under the administration of the Central Government, the overseas investment projects of resource development with the Chinese party's investment amount of 30 million dollars or less and other overseas investment projects with the Chinese party's foreign exchange of 10 million dollars or less shall be decided by themselves, and then they shall report the pertinent documents to the National Development and Reform Commission for the record-keeping purpose. The National Development and Reform Commission shall issue the record-keeping certificate within 7 working days after acceptance of the abovementioned record-keeping materials. Article 7. The investment projects in Taiwan and the countries without any diplomatic relations with China shall, no matter what the amount is, be subject to the examination and approval of the National Development and Reform Commission or be approved by the State Council after being examined and approved by the National Development and Reform Commission. CHAPTER III EXAMINATION AND APPROVAL PROCEDURES Article 8. Where the power to examine and approve the projects remains with the National Development and Reform Commission and the State Council, the investors shall put forward the project application report to the provincial development and reform department at the locality of registration. The provincial development and reform department at the locality of registration shall submit it to the National Development and Reform Commission after it has examined and approved it. The enterprise groups of the cities directly under state planning and the enterprises under the administration of the Central Government may directly submit the project application reports to the National Development and Reform Commission. Article 9. The National Development and Reform Commission shall solicit the opinions of the departments concerned before it examines and approves the investment projects in Hong Kong and Macao Special Administrative Regions and in Taiwan, and the countries without any diplomatic relations with China, and the sensitive areas. The departments concerned shall put forward the written suggestions to the National Development and Reform Commission within 7 working days after acceptance of the abovementioned materials. Article 10. The National Development and Reform Commission shall entrust qualified consulting organizations to assess the key issues which need to be evaluated and demonstrated within 5 working days after acceptance of the application report. The consulting organizations under trust shall put forward the appraisal report to the National Development and Reform Commission within the prescribed time limit. Article 11. The National Development and Reform Commission shall, within 20 working days from acceptance of the project application report, finish examining and approving the project application report or put forward the examination and approval opinions to the State Council. Where it is difficult to make the examination and approval decision or put forward the examination and approval opinions within 20 working days, the period may be extended for ten working days with the approval of the principal of the National Development and Reform Commission, and the project applicant shall be notified of the reasons for the extension. The period specified in the preceding paragraph does not include the period for assessment conducted by the entrusted consulting organization. Article 12. For an approved project, the National Development and Reform Commission shall issue the examination and approval documents in written form to the project applicant. For a disapproved project, the National Development and Reform Commission shall notify the project applicant of the reasons and of the rights to apply for an administrative review or initiate an administrative proceeding in the form of written decision. Article 13. For the projects of overseas bid or purchase, the written information report shall be submitted to the National Development and Reform Commission before the tender or the formal proceeding of business activities. The National Development and Reform Commission shall issue the related confirmation letter within 7 working days after acceptance of the written information report. The information report shall mainly include: (1) the fundamental conditions of the investors; (2) the background particulars of the investment project; (3) the sites and the orientation of investment, the predicted investment scale and construction scale; and (4) the working schedule. Article 14. In case the investors need pouring the necessary first-phase project expenses including the use of foreign exchange (including the deposit for the performance of contract and the letter of guarantee), they shall apply to the National Development and Reform Commission for examination and approval. The approved first-phase expenses shall be included in the total investment amount of the projects. Article 15. The investors should apply to the National Development and Reform Commission for alteration in case the approved projects are under any of the following circumstances: (1) the alteration of the construction scale, the main construction items and main products; (2) the alteration of the construction sites; (3) the alteration of the investors or their stock rights; or (4) Chinese party's investment is in excess of 20% or more of the approved Chinese party's investment amount. The procedures for examining and approving the alteration shall be implemented by referring to the related prescriptions of the present chapter. CHAPTER IV PROJECT APPLICATION REPORT Article 16. A project application report submitted to the National Development and Reform Commission must contain the following items: (1) the name of the project, and the fundamental conditions of the investors; (2) the particulars of the project background and the investment environment; (3) the construction scale of the project, the main construction items, products, target market, and returns of the project and the particulars of risks; (4) the total investment amount of project, the amount of contribution of each party, the mode of contribution, the financing schemes and the amount of foreign exchange; and (5) for the projects of merger by purchase or the projects of purchasing shares, the specific conditions of the companies to be merged or whose shares are to be purchased shall be illuminated. Article 17. The project application report submitted to the National Development and Reform Commission shall be attached with: (1) the resolution of the board of directors of the company or the pertinent resolution of contribution; (2) the documents which can demonstrate the conditions of the assets, the management and the credibility of Chinese party and the foreign cooperators; (3) the letter of intent for financing issued by the bank; (4) in case the contribution is offered in the forms of securities, material objects, intellectual property or technology, stock rights, and creditor's rights, the amount of contribution shall be checked and ratified according to the assessed value and the fair value of the rights and interests of the assets. The evaluation report of assets, which is issued by such intermediaries as the accountants and the assets appraisal institutions with the corresponding qualification, and the document of the third party, which can demonstrate the value of the related assets and rights and interests, shall be submitted; (5) for the cooperative projects of tender, merger by purchase or joint and cooperative, the letter of intent or the framework agreement signed by the Chinese party and foreign party shall be submitted; and (6) for the projects of overseas bid or purchase, the information report, with the attachment of the pertinent confirmation letter of the National Development and Reform Commission, shall be submitted pursuant to Article 13 of the present Measures. CHAPTER V EXAMINATION AND APPROVAL CONDITIONS AND VALIDITY Article 18. The requirements for the project that shall be examined and approved by the National Development and Reform Commission are as follows: (1) it shall comply with the laws and regulations of the State and the industrial policies, not do harm to the sovereignty, safety and public interests of the State, and not violate the norms of international laws; (2) it shall comply with the demands of sustainable development of the economy and society, be beneficial to the development of strategic resources required for developing the national economy; and comply with the requirements of the State for adjusting the industrial structure, promote the export of the technology, products, equipment and labor services with the comparative predominance, and absorb the foreign advanced technology; (3) it shall comply with the administrative prescriptions of national capital projects and the foreign loans; and (4) the investors shall possess the corresponding investment strength. Article 19. The investors shall, pursuant to the examination and approval documents of the National Development and Reform Commission, handle the pertinent formalities of foreign exchange, customs, entry and exit administration and tax according to law. The enterprises under the administration of the Central Government prescribed in Article 6 of the present Measures shall handle the abovementioned pertinent formalities on the strength of the record-keeping certificates issued by the National Development and Reform Commission. Article 20. Before the investors sign any documents with final legal binding force for the overseas investment projects, they shall obtain the examination and approval documents or record-keeping certificates issued by the National Development and Reform Commission. Article 21. The examination and approval documents issued by the National Development and Reform Commission shall stipulate the validity period of the examination and approval documents. Within the validity period, the examination and approval documents shall be the basis for the investors to handle the corresponding formalities prescribed in Article 19 of the present Measures. After the validity period, the investors shall simultaneously present the documents for permitting the extension issued by the National Development and Reform Commission when they handle the abovementioned pertinent formalities. Article 22. For the overseas investment projects not approved by and not put on records at the authorities, no department of foreign exchange regulatory, customs or tax may handle the pertinent procedures. Article 23. In case the investors obtain the approval documents or record-keeping certificates by such unjustifiable means as providing false materials, the National Development and Reform Commission may repeal the approval documents or record-keeping certificates of the projects. Article 24. The National Development and Reform Commission may conduct a supervision and check on the investors' project implementation particulars and on the particulars of examination and approval of the overseas investment projects by the provincial development and reform departments, and deal with the problems found out upon the supervision and check according to law. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 25. All provincial development and reform departments shall, pursuant to the prescriptions of the present Measures, enact the corresponding measures for the administration of examination and approval. Article 26. The examination and approval of projects invested overseas by natural persons and other institutions shall be implemented with reference to the present Measures. Article 27. The power to interpret the present Measures shall remain with the National Development and Reform Commission. Article 28. The present Measures shall come into force as of October 9, 2004. In case the former rules of examination and approval of the overseas investment projects are contrary to the present Measures, the present Measures shall prevail. |
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