Longitudinal and Parallel Comparisons of the Negative Lists for Foreign Investment - 上海公司法律师-公司法律桥-上海杨春宝一级律师

文章摘要 On the last day of June in 2019, the National Development and Reform Commission and the Ministry of Commerce jointly promulgated the Special Administrative Measures (Negative List) for Foreign Investment Access (Edition 2019) (“National List”) and the Special Administrative Measures (Negative List)

关键词：Corporate Lawyer公司法律师实务文章投资并购法律实务books外商投资

On the last day of June in 2019, the National Development and Reform Commission and the Ministry of Commerce jointly promulgated the Special Administrative Measures (Negative List) for Foreign Investment Access (Edition 2019) (“National List”) and the Special Administrative Measures (Negative List) for Foreign Investment Access in Pilot Free Trade Zones (2019 Version) (“FTZ List”) simultaneously, both of which will be implemented starting from July 30, 2019. It is worth mentioning that the length of both lists has been further cut down based on their 2018 editions, with the items under the National List being reduced from 48 to 40 and the items under the FTZ List being reduced from 45 to 37. In addition, the encouraged industry list under the Catalogue of Industries for Guiding Foreign Investment (Revision 2017) and the Catalogue of Priority Industries for Foreign Investment in Central and Western China (Revision 2017) have been replaced by the Catalogue of Encouraged Industries for Foreign Investment (Edition 2019). Compared with the two simplified negative lists, the encouraged industry catalogue of 2019 has increased items to encourage foreign investment in almost all industries.In order to assist foreign investors and those who are interested in cross border investment to get a clearer picture of the differences between Edition 2019 of the two lists and their Edition 2018, we have made two longitudinal comparisons. Meanwhile, to further assist foreign investors to understand the differences between foreign investment access in and out of the free trade zones, we have also made a comparison between the National List and the FTZ List which aims to enable producers or traders to choose suitable registration places depending on their business needs.

1. Longitudinal Comparison of the National Lists

Compared with the National List Edition 2018, the Edition 2019 has repealed all foreign investment access restrictions in seven sub-sectors of five industries, including mining, manufacturing, transportation, warehousing and postal services, water, environment and public facilities management, culture, sports and entertainment with details set forth below:

Industry	2018	2019
Mining	The exploration and development of oil and natural gas (excluding coalbed methane, oil shale, oil sands, shale gas, etc.) are limited to joint ventures and cooperation.	Repealed
Mining	It is prohibited to invest in exploration and mining of molybdenum, tin, antimony, and fluorite.	Repealed
Manufacturing	It is prohibited to invest in the production of Xuan paper and ink sticks.	Repealed
Transportation, warehousing and postal services	Domestic shipping agencies must be controlled by the Chinese side.	Repealed
Water, environment and public facilities management	It is prohibited to invest in the development of wild animal and plant resources protected by the country that are originating in China	Repealed
Culture, sports and entertainment	The construction and operation of the cinema must be controlled by the Chinese side.	Repealed
Culture, sports and entertainment	Performance brokers must be controlled by the Chinese side.	Repealed

2. Longitudinal Comparison of the FTZ Lists

Compared with FTZ List Edition 2018, the Edition 2019 has repealed any and all foreign investment access restrictions in 7 sub-sectors of six industries including agriculture, forestry, husbandry and fishery, mining, manufacturing, transportation, warehousing and postal services, water, environment and public facilities management, culture, sports and entertainment with details set forth below:

Industry	2018	2019
Agriculture, forestry, husbandry and fishery	Investment in aquatic product fishing in China and within China territorial waters shall be prohibited.	Repealed
Mining	Investment in exploration and mining of molybdenum, tin, antimony and fluorite shall be prohibited.	Repealed
Manufacturing	The Chinese party of printers of publications shall hold the controlling stake.	Repealed
Manufacturing	Investment in manufacturing of Xuan paper and ink ingot shall be prohibited.	Repealed
Transportation, warehousing and postal services	The controlling stake of domestic shipping agencies shall be held by the Chinese party.	Repealed
Water, environment and public facilities management	Investment in development of State-protected wild animal and plant resources originated in China shall be prohibited.	Repealed
Culture, sports and entertainment	The controlling stake for construction and operation of movie theatres shall be held by the Chinese party. (Screening of movies shall comply with the time ratio for domestic films and imported films stipulated by the Chinese Government. The time for screening of domestic films annually of a movie theatre shall not be less than two-thirds of the total time for screening of movies annually of the movie theatre.)	Repealed

3. Parallel Comparison of the National List and the FTZ
List

As mentioned above, compared with Edition 2018, both the National List and the FTZ List have been “simplified greatly”. However, except for those two sub-sectors of the agriculture, forestry, husbandry and fishery, and manufacturing industries for which the foreign investment access restrictions (on development of State-protected wild animal and plant resources originated in China and printing of publications) have been repealed under the two Edition 2019 lists, the differences between the two Edition 2019 lists are almost the same as those between the two Edition 2018 lists.

Industry	National List	FTZ List	New Difference
I. Agriculture, forestry, animal husbandry and fishery	The selection and breeding of new varieties of wheat and corn, and seed production must be controlled by the Chinese side.	Chinese party shareholding in new variety breeding and seed production of wheat and maize shall not be less than 34%.	No
I. Agriculture, forestry, animal husbandry and fishery	It is prohibited to invest in the fishing of aquatic products in sea and inland waters under China’s jurisdiction.	Repealed	Yes
II. Mining	It is prohibited to invest in exploration, mining and beneficiation of rare earth, radioactive minerals, and tungsten.	It is prohibited to invest in exploration, mining and beneficiation of rare earth, radioactive minerals, and tungsten. (Without permission, no person shall be allowed to enter rare earth mines or obtain mine geology information, ore samples and production technology.)	No
III. Manufacturing	The printing of publications must be controlled by the Chinese side.	Repealed	Yes
III. Manufacturing	It is prohibited to invest in the smelting and processing of radioactive minerals, or production of nuclear fuel.	No restriction	No
VI. Transportation, warehousing and postal services	Domestic water transportation companies must be controlled by the Chinese side.	Domestic water transportation companies must be controlled by the Chinese side. (Foreign investors shall not operate, or operate through disguised lease of Chinese vessels or berths etc., China domestic waterway transport business and auxiliary businesses thereof; water transport business operators shall not use foreign vessel(s) to operate domestic water transport business however if upon approval by the Chinese government where there is no Chinese vessel in China which can satisfy the transportation requirements, and the port or waters where the vessel is docked is opened to foreign vessels, the water transport business operator may use foreign vessel(s) temporarily within the term or voyage stipulated by the Chinese Government to undertake marine transport and towing between Chinese ports.)	No
	The public air transport company must be controlled by the Chinese side, and the investment ratio of a foreign company and its affiliates must not exceed 25%. The legal representative must be a citizen of Chinese nationality.	The controlling stake in public aviation enterprises shall be held by the Chinese party, and the investment ratio of a foreign investor and its associates shall not exceed 25%. The legal representative shall be a Chinese citizen. (Only China designated public aviation enterprises can operate domestic aviation business, and provide regular and ad hoc international aviation services in the capacity of a China designated carrier.)	No
	It is prohibited to invest in postal companies and domestic express delivery services.	Investment in postal enterprises (and operation of postal services) and domestic express mail business shall be prohibited.	No
VII. Information transmission, software and information technology services	Telecommunications companies: the telecommunication services are limited to those promised at China’s WTO accession, and foreign-invested shares of value-added telecommunications services must not exceed 50% (excluding e-commerce, domestic multi-party communication,store-and-forward business, call center); the basic telecommunications services must be controlled by the Chinese side.	Telecommunications companies: limited to telecommunications services opened up pursuant to China’s WTO commitments; the foreign investment ratio for value-add telecommunications services (except for e-commerce, , domestic multi-party communication,store-and-forward business, call center) shall not exceed 50%; the controlling stake of operators of basic telecommunications businesses shall be held by the Chinese party (and the operators shall be telecommunications companies established pursuant to the law to engage specifically in basic telecommunications businesses). The pilot scheme policies of the Shanghai Pilot Free Trade Zone’s original territory (28.8 square kilometers) shall be extended to all pilot FTZs.	No
XI. Education	Preschool, ordinary high school and higher education institutions are limited to Sino-foreign cooperative education, and must be led by the Chinese side (The principal or chief administrative officer shall have Chinese nationality, and Chinese members of the council, board of directors or joint management committee shall be no less than than 1/2).	Pre-school, ordinary high school and higher education institutions shall be limited to the form of Sino-foreign cooperative joint venture and led by the Chinese party (the principal or the key person-in-charge of administration shall be a Chinese national (and based in China); Chinese members shall comprise no less than half of the council, board of directors or joint administrative committee. (Foreign education institutions, other organizations or individuals shall not solely establish schools or any other educational institutions whose enrolment targets are mainly Chinese citizens (excluding non-academic vocational skills training), however, foreign educational institutions may cooperate with a Chinese educational institution to jointly establish educational institutions whose enrolment targets are mainly Chinese citizens).	No
XIII. Culture, sports and entertainment	Investment in news institutions (including but not limited to news agencies) is prohibited.	Investment in establishment of news organizations (including but not limited to news agencies) shall be prohibited. (Establishment of resident news agency in China and assignment of permanent correspondents to China by foreign news organizations shall be subject to approval by the Chinese Government. Provision of news services by foreign news agencies in China shall be subject to examination and approval by the Chinese Government. Business cooperation between Chinese and foreign new organizations shall be led by the Chinese party, and shall be subject to approval by the Chinese Government.)	No
	It is prohibited to invest in the editing, publishing and production of books, newspapers, periodicals, audio-visual products and electronic publications.	Investment and operation of editing, publication and production of books, newspapers, periodicals, audio-visual products and electronic publications shall be prohibited. (However, subject to approval by the Chinese Government, provided that the Chinese cooperative party holds the operating dominance rights and the rights to final examination of contents, and that the parties satisfy other criteria such as compliance with approval reply of the Chinese Government, a Sino-foreign publisher may engage in Sino-foreign cooperative news publishing projects. Without approval by the Chinese Government, provision of financial information in China shall be prohibited.)	No
	It is prohibited to invest in broadcasting stations, television stations, radio and television channels (frequencies), radio and television transmission coverage networks (transmission stations, relay stations, radio and television satellites, satellite uplink stations, satellite retransmission stations, microwave stations, monitoring stations and cable radio and television transmission coverage networks, etc.) at all levels. It is prohibited to engage in installation services for on demand services for broadcast television videos and ground reception facilities for satellite television broadcasting.	Investment in establishment and operation of all levels of radio stations, television stations, radio and television channel (frequency), radio and television transmission coverage networks (including transmitters and relay stations, radio and television satellites, satellite up-stations, satellite transmission stations, microwave stations, monitoring stations, cable radio and television transmission coverage networks etc.) shall be prohibited, and engaging in radio and television video on demand services and satellite television ground receiving facilities installation services shall be prohibited. (Landing of overseas satellite channels shall be subject to examination and approval.)	No
	It is prohibited to invest in the production and operation of broadcasting and television programs (including the introduction of businesses).	Investment in radio and television program production and operation (including introduction of business) enterprises shall be prohibited. (Introduction of overseas television programs and introduction of other overseas television programs via satellite transmission shall be declared by units designated by the State Administration of Press, Publication, Radio, Film and Television. Sino-foreign cooperative production of television series (including television animation) shall be subject to licensing.)	No
	It is prohibited to invest in film production companies, distribution companies, cinema companies, and film import business.	Investment in film production companies, distribution companies and cinema companies as well as film introduction business shall be prohibited. (However, upon approval, foreign enterprises are allowed to produce films with Chinese enterprises.)	No
	It is prohibited to invest in the auction companies for cultural relics, stores for cultural relics, and state-owned cultural relics museums.	Investment in auction companies, cultural relics stores and state-owned cultural relics museums engaging in auction of cultural relics shall be prohibited. (Transfer, mortgage and renting of immovable cultural relics and cultural relics prohibited to be brought out of China to foreigners shall be prohibited. Establishment and operation of intangible cultural heritage investigation organizations shall be prohibited; intangible cultural heritage surveys and archaeological investigation, exploration and excavation in China by overseas organizations or individuals shall adopt the form of cooperation with China and be subject to special examination and approval and licensing.)	No
	It is prohibited to invest in performing arts groups.	The controlling stake of performing arts groups shall be held by Chinese party.	No

最后编辑于：2020-11-29 15:46

最后更新：2020年11月29日

杨春宝一级律师简介

杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多

常见法律问题

外国投资者在2019年版负面清单中涉及的领域是否有新的准入限制?

2019年版负面清单Overall length has been further reduced compared to the 2018 Edition, with fewer items listed under the Negative Lists for both the National and FTZ versions. This indicates a general trend of relaxing market access restrictions for foreign investors, rather than introducing significant new limitations. According to Article 2 of the Foreign Investment Law (2019), sectors not explicitly included in the Negative List are subject to the principle of preestablishment national treatment, meaning foreign investment in these areas is no longer subject to special administrative measures unless specifically required by law. Therefore, foreign investors should focus on reviewing whether their specific business scope is still subject to restrictions under the latest Negative List, particularly noting the reduced number of restricted items compared to previous years.

外国投资者如何适应自贸试验区2019版负面清单的更新变化?

Self-made modifications were made to the negative list in the Free Trade Zone in 2019, with a number of items lifted from the previous year's version. According to the Notice on Adjusting the Special Administrative Measures for Foreign Investment Access in Free Trade Zones (2019), certain sectors including financial services and telecommunications have been liberalised, which means that the scope of pre-approval procedures has been reduced for projects in these areas. Under the FTZ management measures, investors can apply for special management flexibility through the 'negative list plus filing' or 'negative list plus approval' system. In addition, the pilot program for cross-border negative list also supports the rapid adjustment of policies in response to changes in the list, and relevant projects are encouraged to file for 'streamlined procedures' in advance.

在外国投资准入负面清单以外，外国投资者还有哪些权利依据?

In addition to the Negative List, foreign investment is also protected by the Foreign Investment Law (2019) and the Measures for the Implementation of the Negative List (2019). Article 3 of the Foreign Investment Law clearly stipulates that foreign-funded enterprises shall enjoy the same treatment as domestic enterprises in fields not covered by the Negative List, which is the principle of 'negative list' for market access. In addition, the State Administration of Foreign Exchange and other departments have also issued supporting policies, such as the 'interim measures for the management of overseas direct investment', which provide convenience for foreign exchange settlement and capital flow. Investors can also apply to the Ministry of Commerce for policy recommendations or exceptions when encountering special industry-specific restrictions, ensuring that their legitimate rights and interests are fully protected within the bounds of the law.

以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn

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