This is a speech made at “China Containers 2004” in December 2004.
China Containers 2004, an international symposium sponsored by IBC Asia (S) Pte Ltd, Singapore and supported by China International Freight Agency Association, was held at the Great Wall Sheraton Hotel, Beijing China, from Dec. 9th to 10th, 2004. The delegates from international shipping companies, logistics companies, related trade associations in China and research institutions and other specialized people attended this conference.
I. Summary of the Legal Structure of the Foreign Investment Logistics
1. Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9
(Nov, 11, 2001)
Area to be opened: a. Maritime Transport Services and its Auxiliary Service
b. Internal Waterways Transport
c. Air Transport Services
d. Rail Transport Services
e. Road Transport Services
f. Storage and warehousing services
g. Freight forwarding agency services
Investment Mode: foreigner holding proportion is restrained in most of above area; can not be the holding investor in some area.
Have time limitation for investors in some area.
2. State Catalogue for the Guidance of Foreign Investment Industries (Mar 11, 2002)
Generally goes with the WTO.
3. Circular on the Relevant Issues concerning the Experimental Establishment of Logistics Enterprises with Foreign Investment (June 20, 2002)
a. Investment Area: Jiangshu Province, Zhejiang Province, Guangdong Province,
Beijing, Tianjin, Chongqing, Shanghai, Shengzhen
b. Investment Mode: Joint Venture
4. Comments on Promotion the Development of China’s Modern Logistic by National Development and Reform Commission, Ministry of Commerce and other 7 National Administrations (Aug 5, 2004)
5. Detailed Regulations for Each Logistic Area
a) Maritime Transport Services and its Auxiliary Service:
Provisions of Administration of Foreign Investment in International Maritime Transport
(Feb 25, 2004)
b) Air Transport Services:
Administration of Foreign Investment in Civil Aviation (Jun 21, 2002)
c) Road Transport Services
Administration of Foreign Investment in Road Transport Services (Nov 20, 2001)
Supplement of Administration of Foreign Investment in Road Transport Services
(Dec 31, 2003)
d) Freight Forwarding Agency Services
Administration of Foreign Investment in International Freight Forwarding Agency Services
(Dec 19, 2001)
6. Closer Economic Partnership Arrangement Annex 4 on June 29, 2003
Special Treatment towards investors from Hong Kong and Macau
7. Speeches by Government Officers as a reference
a. Comments on the Promotion of Chinese Modern Logistics (Aug 5, 2004)
Issued on Aug 5, 2004 by 9 governments such State Development and Reform Commission, Ministry of Commerce and other commissions.
b. Deepening Reformation and Enhancing Promotion of China’s Modern Logistics
by Mr. Zhang Zhigang, vice Minister of Commerce Minstry
Issued in the Development and International Cooperative of Chinese Modern Logistics Seminar in Nov 4, 2004
II. Detailed Regulations of Each Field
A. Maritime Transport Services and its Auxiliary Service
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Chinese government has promised that China would open the area of Maritime Transport Services and its Auxiliary Service.
The International Transport here includes freight and passengers, less cabotage transport services; Auxiliary Service includes maritime cargo-handling services, customs clearance services for maritime transport, container station and depot services, Maritime agency services.
Provision of Administration of Foreign Investment in International Maritime Transport
(Feb 25, 2004)
Foreign Investment in Chinese international maritime transport service should compaly with this Provision, Regulations of Maritime and the Procedure of Maritime Regulation..
a. Investment Area:
1. International maritime transport of freight and passengers, international shipping agency services, international ship management services, loading and unloading of international shipments, and international maritime container freight station and container yard services
2. International maritime cargo warehousing services
3. Routine services for the vessels
b. Investment Form
1. International maritime transport of freight and passengers, international shipping agency services, international ship management services, loading and unloading of international shipments, and international maritime container freight station and container yard services:
Can establish sino-foreign equity joint venture or sino-foreign contractual joint venture with a maximum foreign investment of 49 percent of the total registered capital of the joint venture
2. International maritime cargo warehousing services
Can establish wholly foreign-owned enterprises or JV.
3. Routine services for the vessels
Can establish wholly foreign-owned enterprises or JV.
c. Investment Conditions
1. International maritime transport
i. shall have the vessels suitable for the management of International maritime transport, among which shall be Chinese vessels;
ii. have Bill of Lading, tickets or inter-model invoice;
iii. senior managers with qualified certificate by Ministry of Communication
iv. other conditions required by Laws and Regulations.
*Note: The chairman of directors and general manager of the Joint Venture should be appointed by the Chinese Party.
2. International Shipping Agency Service
i. shall have at least 2 people with more than 3 years’ experience in international maritime transport within the senior managers of the enterprises;
Senior manager means the Chinese citizen with a professional title above or at middle level works in international maritime enterprise or international maritime auxiliary enterprise with the position of or above the department manager;
ii. shall have a fixed premises and necessary business facilities, including the abilities of electron data exchange with the Government department such as Port Bureau or Customer;
iii. other conditions required by Laws and Regulations.
d. Governing Department and the Establishment Procedure
1. Governing Department:
National Ministry of Communication, Ministry of Commerce
2. Establishment Procedure:
Application to the Ministry of Communication for the Establishment
↓
Application for the Establishment to the Ministry of Commerce rely on
the approval document issued by the Ministry of Communication
↓
Business Registration in Administration of Industry and Commerce for
the Business License rely on the approval document issued by
the Ministry of Communication and Ministry of Commerce
↓
Application for Approval Certificate for International maritime transport
and International Shipping Agency Service /
International Shipping Agency Service
e. Business Term : no more than 20 years.
Closer Economic Partnership Arrangement Annex 4 (June 29, 2003)
Hongkong and Macau investors can establish WOFE operating in International Ship Management,
International maritime cargo storage and international maritime container freight station and container yard services; WOFE shipping company.
B. Internal Waterways Transport
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Foreign investors are only allowed to take international transport business in the port opened to foreign vessels, that is to say, foreign vessels can not take the business of internal waterways transport between domestic ports.
Catalogue for the Guidance of Foreign Investment (Mar 11, 2002)
Water Transportation Companies are listed in the restricted items.
C. Airline Transport
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Only promised to open the area of aircraft repair and computer reservation system.
Catalogue for the Guidance of Foreign Investment (Mar 11, 2002)
Air transport, the construction and the operation of civil airport are both listed in the encouraged foreign investment industries, and should be JVs with the Chinese party as its holding party of the companies.
Administration of Foreign Investment in Civil Aviation (Jun 21, 2002)
Can invest in public air transport, the construction and the operation of civil airport, general aviation enterprises, and the related program of aviation transportation.
The investment areas are widened in this Administration compared with Protocal and Catalogue for the Guidance of Foreign Investment.
D. Rail and Road Transport Service
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Can invest in freight transportation by rail, freight transportation by road in trucks or cars.
Only allow the investment mode of JV, and foreign investment should be no more than 49%.
a. For rail transportation, three years after China’s enter of WTO, foreign investors can be the holding party of the JV; Six years after China’s enter of WTO, WOFE can be established.
b. For road transportation, one year after China’s enter of WTO, foreign investor can be the holding party of the JV; three years after China’s enter of WTO, WOFE can be established.
Catalogue for the Guidance of Foreign Investment (Mar 11, 2002)
Actually goes with the WTO.
a. For rail transportation, in Dec 11 2004, foreign investors can be the holding party of the JV; Dec 11 2007, WOFE can be established.
b. For road transportation, in Dec 11 2002, foreign investor can be the holding party of the JV; in Dec 11 2004 WOFE can be established.
E. Freight forwarding Agency Services
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Only promised that
a. upon accession, foreign freight forwarding agencies which have at least three consecutive years experience are permitted to set up freight forwarding agency joint ventures in China, with foreign investment not to exceed 50 percent;
b. with in one year after Can’s accession, foreign majority ownership will be permitted
c. with in four years after China’s accession, WOFE will be permitted.
Catalogue for the Guidance of Foreign Investment (Mar 11, 2002)
Listed in the Restrict Items of the Catalogue with a note that foreign ownership can not be more than 50% (express delivery can not be more than 49%); before 2002, foreign majority ownership will be permitted; WOFE will be permitted before Dec 11, 2005.
Administration of Foreign Investment in International Freight Forwarding Agency Services (Dec 19, 2001)
a. Investment Area:
By the authorization of goods receiver or a consignor, to deal with the international transport and the related business on the consignor’s name or its own name.
In detail:
i. Booking cabins, to consign for shipment, storage, package,
ii．Goods loading and uploading supervisor, loading, stripping, transit of container and related
short distance transport service;
iii. Clearance of goods at the Customer, appliance for chek，insurance;
iv. mend and make related tickets, invoice, delivery the freight fee, account balance, delivery miscellaneous fees or expenses；
v. Freight forward agent for international exhibits, private things and frontier transit.
vi. International multimode transport;
vii. International Express Delivery;
viii. Consultation and other international freight forward business
c. Investment Form
Contractual joint venture;
Equity joint venture;
WOFE.
d. Investment Conditions
i. Among the Chinese parties, there should at least be an International Freight Forwarding Agency with more than 1 year’s experience in this area, or an enterprise with an import and export certificate above 1 year, or a transport or storage enterprise with more than 1 year’s experience in its business.
ii. Among the foreign investors, there should at least be an International Freight Forwarding Agency with more than 3 years’ experience in this area, and the foreign investor satisfied this condition should be the majority shareholder among all the foreign investors.
iii. The Chinese parties and the foreign investors do not breach any industry regulations.
iv. shall have a minimum registered capital of USD 1 million.
v. at least 5 employees with more than 3 years’ experience in International Freight Forwarding Agency field;
vi. fixed business office;
vii. necessary communication, transport, loading and uploading, package facilitates.
*Note:
For the International Express Delivery business, the main shareholder shall have the
qualification with international express delivery business;
For those enterprise dealing with International Multimode Transport, shall have below conditions in addition:
1. have deal with the business more than 3 years;
2. have the agency net both abroad and at home;
3. the international transport agency bill of loading has already registered in the Ministry of Commerce.
d. Governing Department and the Establishment Procedure
1. Governing Department:
Ministry of Commerce
2. Establishment Procedure:
Application for the Establishment to the Ministry of Commerce
↓
Business Registration in Administration of Industry and Commerce for the Business License rely on the Approval Certificate for the Establishment of Foreign Enterprises and
the Approval Certificate for International Freight Forwards Agency
issued by the Ministry of Commerce
↓
Application for Approval Certificate for International maritime transport
and International Shipping Agency Service /
International Shipping Agency Service
d. Business Term: not more than 20 years.
Closer Economic Partnership Arrangement Annex 4 (June 29, 2003)
Hongkong and Macau investors can establish WOFE operating in International Freight Forwards Agency business from 2004, with a minimum registered capital as same as domestic Freight Forwards Agencies as follows:
a. Maritime International freight forwards : RMB 5 million;
b. Aviation international freight forwards: RMB 3 million;
c. Land international fright forwards or International express delivery: RMB 2 million.
IV. Government Comments (both official and unoffical)
Comments on the Promotion of Chinese Modern Logistics (Aug 5, 2004)
Issued on Aug 5, 2004 by 9 governments such State Development and Reform Commission, Ministry of Commerce and other commissions.
The approval procedure before the Business Registration in Administration of Industry and Commerce will be cancelled; cancel the administrative approval for domestic rail freight forwards, waterway freight forwards, multimode transport fright forwards.
Deepening Reformation and Enhancing Promotion of China’s Modern Logistics
(Nov 4, 2004)
by Mr. Zhang Zhigang, vice Minister of Commerce Minstry
Issued in the Development and International Cooperative of Chinese Modern Logistics Seminar in Nov 4, 2004
The speech reveals that the government will reduce and cancel the administrative approval in Logistics area, simplify Customs procedures, and the government encourages famous foreign logistics enterprises to invest in China.
V. Foreign Investment in Ports
Protocal on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov, 11, 2001)
Not listed in Protocal.
Catalogue for the Guidance of Foreign Investment (Mar 11, 2002)
Construction and management of public dock facilities of ports are listed in the encouraged items; there is no additional stipulation about the investment formality, investment period.
There is no detailed law and regulation stipulate that whether wholly owned foreign port can be established, some regulation has once stipulate that foreign investors can only invest in private dock owned by cargo owners. However, in some province wholly owned foreign invested public dock.
Law of Ports (Jun 28, 2003)
Administration of Ports Management (Apr 15, 2004)
*Note: above is the newly promulgated law and regulations in this area, and foreign investment in ports area should comply with these articles.
Investment Area:
i. Provide dock, anchorage and other facilitates;
ii. Provide waiting room and get on and off board facilities service;
iii. Provide loading and unloading, storage, lighterage, container yard and package service;
iv. Provide push and pull service for ship entering and exit port;
v. Provide tally service such as counting and check the surface conditions of goods during the process of goods delivery and receiving ；
vi. Provide electricity, fuel, daily supplies and other daily service;
vii. Rent and maintaining service for dock facilities and machineries.
相关法律服务
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"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，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
外商投资中国国际海运服务有哪些法律限制？
国际海运服务属于中国对外资有限开放的领域，外商投资需遵守国家关于外商投资产业指导目录及海运业专项管理规定。其核心规则是：外国投资者通常只能以中外合资经营企业或中外合作经营企业的形式进入，且外资持股比例不得超过合资企业注册资本的49%，意味着中方需保持控股地位。同时，合资企业的董事长和总经理应由中方方指定人员担任，以保证中方的经营管理控制权。经营期限原则上不超过20年，期满可依法申请延长。n文章指出，国际海运涉及货物和旅客运输、国际船舶代理、国际船舶管理、国际海运集装箱站与堆场、装卸等业务，此类业务均适用上述合资与股比限制。但国际海运货物仓储以及船舶日常维护服务则允许设立外商独资企业，为外资提供了更灵活的投资空间。此外，香港和澳门投资者依据更紧密经贸关系安排，可设立独资企业从事国际船舶管理、集装箱堆场等业务，享受优于其他外资的待遇。n外资进入该领域需按照特定审批流程：先向交通运输主管部门申请设立许可，获得批准文件后再向商务主管部门申请外商投资企业设立审批，随后办理工商登记和营业执照，最后申请国际海运经营许可证。实务中常见争议包括股权比例的认定、中方对关键岗位的任命权是否得到落实，以及外国投资者是否具备资历条件，例如拥有适合国际海运的船舶和具有资质的高级管理人员。投资者应事先核实自身的船舶资产和人员条件，并关注地方审批口径差异，避免因程序瑕疵导致投资失败。
外商能否进入中国内河运输市场？
内河运输市场对外资实施严格限制，这是中国入世承诺中保留的敏感领域。根据相关法律原则，外国船舶仅可以在对外开放港口从事国际运输业务，不得经营中国国内港口之间的内河及沿海运输业务，即通常所称的沿海运输权保留给中方。外商投资产业指导目录将水上运输公司列为限制类项目，意味着外资不能以独资或控股方式进入中国内河水运经营，只能通过合资形式且受股比约束。n文章明确指出，外国投资者仅被允许在对外轮开放的港口从事国际运输，外国船舶不能从事国内港口间的内河水道运输业务。这一规定旨在保护国内航运企业的市场份额。文章还提及，水运公司被列入外商投资限制目录，但未完全禁止外资参股，只是准入条件更为严格。实践中，外资可通过与中方航运企业成立合资公司，并在特定业务范围内申请经营资格，但业务范围通常不涵盖内河货物运输本身。n对于希望涉足中国内河物流的外商，实务上应考虑调整投资方向，例如投资与内河运输相关的港口装卸、仓储、船舶修造等配套服务，这些领域开放度相对较高。若确需进入内河运输，必须寻找有资质的中方合作伙伴，并确保合资公司的中方控股地位。同时要注意，外资企业不得以租用船舶或变通方式从事禁止经营的国内水运，否则将构成违法经营，面临行政处罚和合同无效的风险。因此，投资前应仔细鉴别拟经营活动的具体性质，必要时向水运主管部门咨询确认。
外商投资航空运输服务有哪些特殊规定？
航空运输服务属于中国外资准入中的限制类行业，开放范围较窄。根据中国加入世贸组织时作出的承诺，在航空运输领域，中国仅承诺开放飞机维修服务和计算机订座系统，而航空运输本身以及机场建设和运营等核心业务并未全面开放。外商投资这些限制领域时，需遵循专门的民航外资准入规定，通常要求中方控股或相对控股，且须经过民航主管部门和商务部门的双重审批。n文章将航空运输服务作为独立领域加以说明，指出入世承诺只开放了飞机维修和计算机订座系统，并列举了《外商投资民航业管理规定》等专项法规作为法律依据。这些法规对航空公司的外资比例设置了上限，且要求外方投资者具备相应的行业经验。文章还提到，航空运输及机场项目的建设和运营被列入限制类目录，表明外资参与此类项目将面临比一般服务业更为严格的审查和条件限制。n实务中，外国投资者若计划投资中国航空运输市场，应首先判断其目标业务是否属于开放范围。可以投资的方向包括民用飞机维修企业、计算机订座系统服务等，但不得涉及航空公司的主干航线经营权。若参与机场或航空公司的股权投资，必须确保中方保持控股，并且外方不得担任法定代表人或拥有实际控制权。审批时需准备详细的可行性研究报告，证明投资不会危害国家安全和航空秩序。常见风险在于外资试图通过管理协议或代持方式规避股比限制，这将被认定为无效并可导致行政处罚。因此，建议投资者在项目初期即与民航监管部门进行沟通，明确合法投资路径。
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
