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From fledgling concessions to PPP that is sweeping the country today, there are two major sets of regulations to be followed: one being regulations for concessions led by the National Development and Reform Commission (“NDRC”) and the other the series of regulations for PPP led by the Ministry of Finance (“MoF”). However, to date, there is still not one law that expressly defines the relationship between the two, resulting in much confusion and many impediments in practice. The relationship between concessions and PPP is an issue currently desperately needing clarification.
Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Concilia
The UN Commission on International Trade Law (“UNCITRAL”) held its 47th session in New York on 7-18 July 2014 and the Author had the privilege of attending the conference at invitation of Mr. Yu Jianlong, President of the Asia Pacific Regional Arbitration Group (“APRAG”). During the conference, the U.S. Government submitted a proposal suggesting Working Group II (Arbitration and Conciliation) of UNCITRAL (“Working Group II”) to develop a multilateral convention with respect of the enforceability of international commercial settlement agreements reached through conciliation (“Enforceability Convention”) for the purpose of encouraging the use of conciliation in resolving international commercial disputes. Read more
With the widespread use of the PPP model in China, financing channels for PPP projects have also increasingly diversified. Bank, trust, fund and insurance channels of capital have all rushed onto the stage of project financing. Subject to Article 43 of the Commercial Bank Law, banks, as the traditional big brother of financing, have always played the role of lender. In practice, the opinions as to whether they can participate in the bidding on, and contributing capital to, PPP projects as private investors have been mixed.
The current PPP tide in China driven by the Ministry of Finance and the National Development and Reform Commission witnesses the transformation and upgrading of large state-owned enterprises. These enterprises that have traditionally only been familiar with bid invitation, bid submission, and construction, have started to have an impact on numerous new areas such as project proposal and planning, company establishment and acquisition, fund establishment and operation, etc. Certain state-owned enterprises that got their starts fairly early have cultivated teams with extensive experience in investing, and certain enterprises that are just starting up are selecting young talent from various entities in all out effort to catch up. Private enterprises also participate enthusiastically.
China Customs recently requires that the importer or exporter of record declare the impact on the import or export price of its special relationship with the counterpart (“Price Impact”). Specifically the declaring party must state whether its special relationship, if any, would affect the transaction value or price as declared to the China Customs. Previously the special relationship was an item of declaration subsequent to a specific request from the Customs. However, the impact of the special relationship was not an item of declaration, and the declaration party even had a general defense right to disprove such Price Impact. The Price Impact, if any, has been a pre-condition for the Customs not to accept the declared transfer price for the purpose of ascertaining dutiable price of a given import or export shipment, in which case, China Customs shall re-value the given shipment according to China customs valuation rules.
The Ministry of Finance, General Administration of Customs and State Administration of Taxation of China jointly issued a circular (“Joint Circular”) relating to the taxation policy on the cross-border e-commerce retailing imports, with effect as from April 8, 2016.
One of the most important negotiated points by parties in contract negotiations is the dispute resolution clause. If parties agree on arbitration, they often negotiate which arbitration institution or arbitration rules will apply in resolving potential disputes.
Ren Qing and Wu Peng, Partners in Zhong Lun Law Firm
[Abstract] As the first legal document specially making provisions on anti-monopoly issues in the field of intellectual property rights, the Provisions of the SAIC are of great significance. For various reasons, the Provisions have a narrow scope of application and are yet to be improved in respect of operability and predictability. Enterprises shall not understand and apply the Provisions in an isolated manner, but grasp provisions of relevant laws comprehensively and accurately with systematic thinking mode to ensure compliance in respect of anti-monopoly in the field of intellectual property rights.
By Steve Zhao
On 19 January 2015, the Chinese Ministry of Commerce (MOFCOM) announced the Foreign Investment Law of the People’s Republic of China (Draft for Public Opinions) (the Draft for Public Opinions), publicly seeking input from society at large. Any interested party may put forth opinions and recommendations on the draft prior to 17 February 2015. As soon as this law (the Foreign Investment Law) is passed, it will combine the former three foreign investment laws into one and bring the case-by-case approval and management model for foreign investment to an end, and China will enter a new era of “limited approvals with full-scale reporting” for the regulation of foreign investment. That is to say, foreign investors making investments in items on the negative list will need to apply for an investment entry approval; at the same time, foreign investors making investments in Chinese territory will all need to fulfill reporting obligations, regardless of whether the investment is in an area on the negative list.
On April 30, 2015, OmniVision Technologies, Inc. (OVTI, a Delaware company listed on NASDAQ) announced that it has entered into a definitive agreement to be acquired by a consortium composed of Hua Capital Management Co. Ltd. (“Hua Capital Management”), CITIC Capital Holdings Limited (“CITIC Capital”) and GoldStone Investment Co. Ltd. (“GoldStone Investment”) (collectively, the “Consortium”). Under the terms of the agreement, OmniVision stockholders will receive $29.75 per share in cash, or a total of approximately $1.9 billion. The agreement was unanimously approved by OmniVision’s Board of Directors.