The English version is for reference only. If there is any inconsistency or conflict between the English and Chinese version, the Chinese version shall prevail.

Hu Fu Fa [2013] No. 74

Circular of Shanghai Municipal People’s Government on Printing and Issuing the Measures for Administration of the Filing of Overseas-Invested Enterprises of the China (Shanghai) Pilot Free Trade Zone

All District/County People’s Governments, and all commissions, offices and bureaus of the Municipal Government:

We hereby print and issue to you the Measures for Administration of the Filing of Overseas-Invested Enterprises of the China (Shanghai) Pilot Free Trade Zone, and require you to implement the Measures conscientiously.

Shanghai Municipal People’s Government

29.09.2013

Measures for Administration of the Filing of Overseas-Invested Enterprises of the China (Shanghai) Pilot Free Trade Zone

Article 1 (Purpose and Basis)

For the purposes of further opening up to the outside world, boosting reform of the overseas investment management system, and creating an international and regulatory investment environment, these Measures are formulated in accordance with the Framework Plan for the China (Shanghai) Pilot Free Trade Zone.

Article 2 (Scope of Application)

These Measures are applicable to overseas investment of enterprises (hereinafter “Enterprises”) registered in the China (Shanghai) Pilot Free Trade Zone (hereinafter “FTZ”).

The term “overseas investment” as mentioned in these Measures means that the Enterprise sets up a new non-financial enterprise overseas or acquires the ownership, control power, management and administrative rights etc. of an existing non-financial enterprise overseas in the way of merger and acquisition.

Article 3 (Filing Agency)

China (Shanghai) Pilot Free Trade Zone Management Committee (hereinafter “Filing Agency”) shall be responsible for the administration of filing of overseas invested enterprises within its authority.

Article 4 (Filing Authority)

The Filing Agency shall administer the filing of overseas investment.

The overseas investment shall still apply the Measures for Overseas Investment Management in a country (region) which has not established diplomatic relationships with China, or in a specific country (region), or involving the interests of multiple countries (regions), or for setting up a special-purpose company overseas, or in the field of energy or minerals, or which needs to attract capital from domestic investment within China.

The overseas investment of the Enterprise shall not fall under any of the following circumstances:

Endangering the state sovereignty, national security and public interests of China or violating  laws or regulations of China;
Damaging the relationship between China and a relevant country (region);
Likely violatation of any international treaty concluded by China; or
Involving any technology or goods prohibited by China from import.

Article 5 (Filing Materials)

If the Enterprise applies for overseas investment filing, it shall submit the following materials to the Filing Agency:

Overseas investment filing application form;
Personal identification papers of the legal representative of the investor; and
In special circumstances, other materials required by the Filing Agency.

Article 6 (Time Limit of Filing)

The Filing Agency shall conduct the filing and produce and issue an Enterprise Overseas Investment Certificate (hereinafter “Certificate”) within 5 working days after the Enterprise submits all the materials set forth in Article 5 hereof and the Filing Agency confirms that the materials conform to the specified form.

If the Enterprise fails to submit the filing materials completely or the materials submitted do not conform to the specified format, the Filing Agency shall inform the Enterprise once and for all within 1 working day after receipt of the filing materials.

Article 7 (Change and Termination)

The Enterprise shall apply to the Filing Agency for change of filing in case of any change to the investor, investment amount, equity ratio, capital source structure, business scope or operating period of the overseas-invested enterprise established in accordance with these Measures.

In case of termination of the established overseas-invested enterprise, the Enterprise shall apply to the Filing Agency for termination filing.

The procedures for filing of change and termination shall apply Article 5 and 6 of these Measures.

Article 8 (Effect of Certificate)

The Enterprise shall, after completion of the overseas investment filing, process foreign exchange, Customs, foreign affairs and other relevant formalities with the Certificate and may apply for relevant policy support of China in accordance with relevant regulations.

Article 9 (Validity Period of Certificate)

If the Enterprise fails to complete the relevant legal formalities in the investment destination country (region) or fails to go through the domestic formalities set out in Article 8 hereof within two years from receipt of the Certificate, the Certificate shall automatically become null and void. If the Enterprise still intends to make overseas investment, it shall re-apply for filing in accordance with these Measures.

Article 10 (Good Faith Management)

The Filing Agency shall carry out good faith management on the overseas investor. The Enterprise shall ensure the authenticity of all reporting matters and submitted materials, and shall make overseas investment in accordance with national laws and regulations.

Article 11 (Interim and Post Supervision)

The code of conduct for the Enterprise’s overseas investment shall be subject to the Measures for Overseas Investment Management. The Filing Agency shall be responsible for interim and post-supervision and urge the Enterprise to apply for filing of reinvestment, register at the embassy (consulate) of China in the foreign country or region, accept the guidance of such embassy (consulate), timely submit statistics and annual data, fulfill corporate social responsibility, put into effect all personal and property safety protection measures, set up an emergency warning mechanism and emergency plans, and timely handle overseas emergencies.

Article 12 (Penalty Provisions)

Where the Enterprise provides false application materials, fails to truthfully complete the overseas investment filing application form, or realizes overseas investment filing by any other improper means, the Filing Agency shall revoke the Certificate and record such information in its credit files; and the Enterprise shall not enjoy the relevant policy support of the State within three years.

Article 13 (Supplementary Provisions)

The investment of the Enterprise in the Hong Kong Special Administrative Region and Macao Special Administrative Region shall apply these Measures; and the investment of the Enterprise in Taiwan shall apply the Circular of the National Development and Reform Commission, the Ministry of Commerce and the Taiwan Affairs Office of the State Council on Printing and Issuing the Measures for Administration of the Investment in Taiwan by Mainland Enterprises (Fa Gai Wai Zi [2010] No. 2661).

Where a public institution with a legal person status makes any overseas investment, the Enterprise establishes any unincorporated enterprise, or the overseas enterprise of which the majority of shares are hold by the Enterprise makes investment, these Measures shall apply.

Article 14 (Effective Date)

These Measures shall become effective as of October 1, 2013.

Provided by Lawyers Working Committee of Pudong New Area