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境外投资项目核准暂行管理办法 Verification and Approval of Overseas Investment Projects Tentative Administrative Procedures

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国家发展和改革委员会令第21号

(Promulgated by the National Development and Reform Commission on 9 October 2004 and effective as of the date of promulgation.)

颁布日期:20041009  实施日期:20041009  颁布单位:国家发展和改革委员会

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures are specially formulated in accordance with the PRC, Administrative Licensing Law and the State Council, Reform of the Investment System Decision in order to standardize the administration of verification and approval of overseas investment projects.

  Article 2 These Procedures shall apply to the verification and approval of investment (including new establishment, merger and acquisition, equity participation, capital increase and re-investment) projects conducted overseas by various types of legal persons (Investment Entities) in the People‘s Republic of China and the overseas enterprises or organizations in which they hold a controlling share.

  These Procedures shall apply to the verification and approval of investment projects conducted by Investment Entities in the Hong Kong Special Administrative Region, the Macao Special Administrative Region and the Taiwan region.

  Article 3 For the purposes of these Procedures, the term “overseas investment projects” shall refer to the activities by which an Investment Entity obtains overseas ownership, operation and management rights or other relevant rights through the injection of assets and rights such as currency, negotiable securities, physical objects, intellectual property rights or technology, equity or claims, or through the provision of security.

  PART TWO VERIFICATION AND APPROVAL AUTHORITIES AND THEIR AUTHORITY

  Article 4 The State shall implement administration of verification and approval of overseas investment projects in the category of resource development and overseas investment projects that involve the use of a large amount of foreign exchange.

  Projects in the category of resource development shall refer to projects of overseas investment in exploration and development of resources such as crude oil and mines. In this type of projects, where the amount of investment of the Chinese party is US$ 30 million or above, the project shall be verified and approved by the National Development and Reform Commission. Where the amount of investment of the Chinese party is US$ 200 million or above, the project shall be reported to the State Council for verification and approval after examination and verification by the National Development and Reform Commission.

  Projects that involve the use of a large amount of foreign exchange shall refer to overseas investment projects outside the areas listed in the preceding paragraph in which the amount of foreign exchange used for investment of the Chinese party is US$ 10 million or above. This type of projects shall be verified and approved by the National Development and Reform Commission. Where the amount of foreign exchange used for investment of the Chinese party is US$ 50 million or above, the project shall be reported to the State Council for verification and approval after examination and verification by the National Development and Reform Commission.

  Article 5 Resource development projects with an amount of investment by the Chinese party of less than US$ 30 million and other projects with an amount of foreign exchange used for investment by the Chinese party of less than US$10 million shall be verified and approved by the provincial-level development and reform department of provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans or the Xinjiang Production and Construction Brigade. Authority to verify and approve such projects may not be delegated. In order to grasp information on verified and approved projects in a timely manner, provincial-level development and reform departments shall submit duplicates of the project verification and approval document to the National Development and Reform Commission within 20 working days of the date of verification and approval.

  Where a local government has other stipulations on the verification and approval of the projects listed in the preceding paragraph according to the relevant regulations, such stipulations shall prevail.

  Article 6 Overseas investment projects in the category of resource development of enterprises administered by the central government in which the amount of investment of the Chinese party is less than US$ 30 million, and other overseas investment projects of enterprises administered by the central government in which the amount of foreign exchange used for investment of the Chinese party is less than US$ 10 million shall be decided by the enterprises on their own, and the relevant documents shall be reported to the National Development and Reform Commission for record filing after a decision is made. The National Development and Reform Commission shall issue a proof of record filing within seven working days of the date of receipt of the aforementioned record filing materials.

  Article 7 Projects for investment in the Taiwan region and in countries with which China has not established diplomatic relations shall be verified and approved by the National Development and Reform Commission or by the State Council after examination and approval by the National Development and Reform Commission, regardless of the amount involved.

  PART THREE VERIFICATION AND APPROVAL PROCEDURE

  Article 8 Where a project is subject to the verification and approval of the National Development and Reform Commission and the State Council according to the verification and approval authority, a project application report shall be submitted by the Investment Entity to the provincial-level development and reform department at the place of registration, which shall then be submitted to the National Development and Reform Commission after examination and verification by the provincial-level development and reform department. Enterprise groups with independent development plans and enterprises administered by the central government may submit project application reports directly to the National Development and Reform Commission.

  Article 9 The National Development and Reform Commission shall, before verifying and approving projects for investment in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, the Taiwan region, and countries with which China has not established diplomatic relations and sensitive regions, seek the opinions of the relevant department. The relevant department shall, within seven working days of the receipt of the aforementioned materials, issue a written opinion to the National Development and Reform Commission.

  Article 10 The National Development and Reform Commission shall, within five working days of the date of acceptance of a project application report, appoint a qualified consultancy institution to carry out an assessment of the key issues that need to undergo assessment and discussion. The appointed consultancy institution shall submit an assessment report to the National Development and Reform Commission within the stipulated time period.

  Article 11 The National Development and Reform Commission shall, within 20 working days of the date of acceptance of the project application report, complete verification and approval of the application or issue an examination and verification opinion to the State Council. If it is unable to render a decision on verification and approval or issue an examination and verification opinion within 20 working days, an extension of 10 working days shall be approved by the responsible person of the National Development and Reform Commission, and the project applicant shall be notified of the reason for the extension.

  The period for verification and approval specified in the preceding paragraph shall not include the time for the assessment conducted by the appointed consultancy institution.

  Article 12 The National Development and Reform Commission shall issue a written verification and approval document to the project applicant whose project has been verified and approved. Where a project is not verified and approved, the National Development and Reform Commission shall notify the project applicant in writing, explaining the reasons therefor and notifying the project applicant of his right to apply for an administrative review or to institute an administrative action in accordance with the law.

  Article 13 In the case of projects that involve competing in a bid overseas or acquisition, a written information report shall be submitted to the National Development and Reform Commission prior to the submission of bids or the formal launch of commercial activities. The National Development and Reform Commission shall, within seven working days of the date of receipt of the written information report, issue a confirmation letter. The main particulars of the information report shall include:

  1. basic details of the Investment Entity;

  2. background information of the project investment;

  3. place and direction of investment, and the anticipated scale of investment and scale of establishment; and

  4. planned work timetable.

  Article 14 If an Investment Entity needs to inject necessary preliminary fees for the project and it involves the amount of foreign exchange to be used (including performance bonds, letters of guarantee, etc.), it shall apply to the National Development and Reform Commission for verification and approval. Such preliminary fees that have been verified and approved shall be included in the total amount of investment in the project.

  Article 15 If a verified and approved project is in any of the following circumstances, an application for amendment shall be made to the National Development and Reform Commission:

  1. there is a change in the establishment scale, main establishment particulars or main products;

  2. there is a change in the place of establishment;

  3. there is a change in an investor or equity; or

  4. the investment of the Chinese party exceeds the investment amount originally verified and approved by 20% or more.

  The procedure for verification and approval of amendment shall, mutatis mutandis, be handled according to the relevant provisions of this Part.

  PART FOUR PROJECT APPLICATION REPORTS

  Article 16 Project application reports submitted to the National Development and Reform Commission shall include the following particulars:

  1. the project name and the basic details of the investors;

  2. background information of the project and the details of the investment environment;

  3. the scale of establishment of the project, main establishment particulars, products, target market(s), and the benefits and risks of the project;

  4. total investment in the project, capital contribution of each party, method of capital contribution, financing plan and amount of foreign exchange used; and

  5. in case of merger and acquisition or equity participation project, the specific details of the company involved in the merger and acquisition or equity participation shall be stated.

  Article 17 Project application reports submitted to the National Development and Reform Commission shall be accompanied by the following documents:

  1. the resolution of the company‘s board of directors or relevant resolution on capital contribution;

  2. supporting documents for the Chinese and foreign partners‘ assets, operation and creditworthiness;

  3. a letter of intent for financing issued by a bank;

  4. where the capital contribution is made in the form of assets and rights such as negotiable securities, physical objects, intellectual property rights or technology, equity or claims, etc., the amount of capital contribution shall be determined on the basis of the assessed value or fair value of the assets and rights. An asset valuation report issued by an intermediary institution with the corresponding qualifications such as accounting firm and asset valuation institution, or other documents from a third party that can prove the value of the relevant assets and rights, shall be submitted;

  5. in the case of projects that involve submission of bids, merger and acquisition or equity or cooperative joint ventures, documents signed by the Chinese and foreign parties such as letters of intent or framework agreements; and

  6. in the case of projects that involve competing in a bid overseas or acquisition, an information report shall be submitted according to Article 13 hereof together with the relevant confirmation letter issued by the National Development and Reform Commission.

  PART FIVE VERIFICATION AND APPROVAL CRITERIA AND EFFECTIVENESS

  Article 18 The criteria for verification and approval of a project by the National Development and Reform Commission shall be:

  1. the project complies with State laws and regulations and industrial policies, does not endanger national sovereignty, national security or the public interest nor violate the principles of international law;

  2. the project complies with the requirements of sustainable economic and social development, and is beneficial to the development of strategic resources required for national economic development. It complies with the State requirements on the adjustment of industrial structure, promotes the export of domestic technology, products, equipment and labour with comparative advantage, and attracts advanced foreign technology;

  3. the project complies with the State provisions on administration of capital accounts and foreign debt; and

  4. the Investment Entity has the relevant investment strength.

  Article 19 The Investment Entity shall, on the strength of the verification and approval document issued by the National Development and Reform Commission, carry out the procedures in regard to foreign exchange, customs, entry and exit administration and tax, etc. in accordance with the law. The enterprises administered by the central government specified in Article 6 hereof shall, on the strength of the proof of record filing issued by the National Development and Reform Commission, carry out the aforementioned procedures.

  Article 20 Before signing any document relating to overseas investment projects that are legally binding, an Investment Entity shall obtain a project verification and approval document or proof of record filing issued by the National Development and Reform Commission.

  Article 21 The verification and approval document issued by the National Development and Reform Commission shall stipulate the term of validity of the document. Within the term of validity, the verification and approval document shall be the basis for carrying out the procedures listed in Article 19 hereof by the Investment Entity. After the expiration of the term of validity, the Investment Entity shall, when carrying out the aforementioned procedures, at the same time present the document issued by the National Development and Reform Commission that grants an extension.

  Article 22 The foreign exchange control, customs, tax departments, etc. shall not handle the relevant procedures for overseas investment projects that have not been verified and approved or filed for record by the competent authority.

  Article 23 If an Investment Entity has obtained a project verification and approval document or proof of record filing through improper means such as submission of false materials, the National Development and Reform Commission may revoke the verification and approval document or proof of record filing for such project.

  Article 24 The National Development and Reform Commission may supervise and inspect the implementation of projects by Investment Entities and the verification and approval of overseas investment projects by provincial-level development and reform departments, and shall handle verified issues in accordance with the law.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 25 All provincial-level development and reform departments shall formulate corresponding procedures for the administration of verification and approval in accordance with the provisions hereof.

  Article 26 Verification and approval of investment projects conducted overseas by natural persons and other organizations shall, mutatis mutandis, be handled according to these Procedures.

  Article 27

  The National Development and Reform Commission shall be responsible for interpreting these Procedures.

  Article 28 These Procedures shall be effective as of 9 October 2004. In the event of a conflict between previous regulations on examination and approval of overseas investment projects and these Procedures, these Procedures shall prevail.

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