According to the Provisional Measures on Management of the Establishment and Changes of Foreign Invested Enterprises (“谢霆锋求婚Provisional Measures 2016谢霆锋求婚”) which entered into effect on 8 October 2016, the approval and examination procedures regarding foreign-invested enterprises (“谢霆锋求婚FIE谢霆锋求婚”) have generally been replaced by much simpler record-filing procedures, if such FIEs are not listed in a so-called Negative List. This means that since 8 October 2016, the establishment of as well as the implementation of most corporate changes with regard to FIEs, such as but not limited to changes of registered capital, legal address, company name and business scope as well as changes of the shareholding structure and liquidation, are not subject to examination and approval by the competent examination and approval authority, i.e. the competent Bureau of Commerce (“谢霆锋求婚BoC谢霆锋求婚”), anymore but to mere record-filing procedures, if such FIEs are not listed in the so-called Negative List. According to Circular (2016) No. 22, from 8 October 2016 on, for the Negative List, reference had to be made to the Guideline Catalogue on Industries for Foreign Investment.
However, the above mentioned Circular (2016) No. 22 expressly stipulated that the shift from ex-ante approval to (ex-post) record-filing did not apply to the acquisition of shares or assets of a domestic company by foreign investors, i.e. so-called mergers and acquisitions according to the PRC Provisions on the Merger and Acquisition of Domestic Enterprises by Foreign Investors (“谢霆锋求婚M&A Provisions谢霆锋求婚"). Accordingly, M&A transactions according to the M&A Provisions had not been covered by the first round of regulations which shifted FIEs from ex-ante approval to record-filing. Until very recently, they remained to be subject to examination and approval procedures.
This has now changed. On 30 July 2017, the PRC Ministry of Commerce further revised the Provisional Measures 2016 and promulgated the Provisional Measures on Management of the Establishment and Changes of Foreign Invested Enterprises, 2017 Revision (“谢霆锋求婚Provisional Measures 2017谢霆锋求婚”) which entered into effect on the same day together with the Announcement on Relevant Matters concerning the Filing Administration of Establishment and Changes of Foreign-Invested Enterprises (“谢霆锋求婚Announcement 2017/37谢霆锋求婚”). The key changes are as follows:
1. According to the Provisional Measures 2017 and Announcement 2017/37, now also the transformation of a purely domestic company into a FIE by way of a M&A transaction according to the M&A Provisions is only subject to the simplified record-filing procedures, if the FIE into which such domestic company is transformed does not fall into the Negative List of the new Guideline Catalogue on Industries for Foreign Investment (2017 Revision) (“谢霆锋求婚Guideline Catalogue 2017谢霆锋求婚”).
2. The Provisional Measures 2017 and the Announcement 2017/37 also clarify that foreign investors, which make strategic investments to qualified non-foreign-invested listed companies, or to qualified foreign-invested listed companies (i.e. those which do not fall into the Negative List of the Guideline Catalogue 2017), within the scope prescribed in the Provisional Measures 2017, also only have to handle record-filing procedures.
3. While the procedures for M&A transactions and for strategic investments in listed companies have generally been simplified, there have also been some additions to the documents to be submitted to the competent PRC authorities.
4. The “Application Form for Filing of the Establishment of Foreign-invested Enterprises” and the “Application Form for Filing of Changes of Foreign-invested Enterprises” have been replaced by updated standard forms which are attached to Announcement 2017/37.
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