GC Agenda China: June 2016 | Practical Law

GC Agenda China: June 2016 | Practical Law

A look back at the most recent legal developments for general counsel (GC) and their advisers working on China-related matters. GC Agenda China identifies and analyses the key issues that affect businesses, provides insight from leading legal practitioners and professionals, and gives specific and actionable guidance in response to these issues.

GC Agenda China: June 2016

Practical Law UK Articles 4-630-3329 (Approx. 10 pages)

GC Agenda China: June 2016

by Brad Herrold, Consultant and Practical Law China
Published on 29 Jun 2016China
A look back at the most recent legal developments for general counsel (GC) and their advisers working on China-related matters. GC Agenda China identifies and analyses the key issues that affect businesses, provides insight from leading legal practitioners and professionals, and gives specific and actionable guidance in response to these issues.
The June 2016 edition of GC Agenda China is the twenty-seventh in the series.

Speedread

A look back at the most recent legal developments for general counsel and their advisers working on China-related matters. GC Agenda China identifies and investigates the key issues affecting businesses, provides insight from leading practitioners and gives specific and actionable guidance in response to these issues.
This month's GC Agenda covers:
  • Rules issued by State Council and MOFCOM to facilitate inbound investment by CEPA service suppliers.
  • The SAPPRFT's revised rules on audiovisual program broadcast services.
  • State Council's opinions to spur development of rental housing market.
  • Draft rules on supplementary pension scheme.
  • SAFE's notice on at will conversion and use of foreign debt proceeds.
  • The SAPPRFT's rules in mobile gaming industry.
The June 2016 edition of GC Agenda China is the twenty-seventh in the series.

State Council and MOFCOM issue rules to facilitate inbound investment by CEPA service suppliers

On 18 May 2016, the Ministry of Commerce (MOFCOM) issued the Measures on the Administration of the Record-filing of Hong Kong and Macau Service Suppliers Investing in the Mainland (Trial).
On 31 May 2016, the State Council issued the Decision to Temporarily Adjust the Relevant Administrative Examination and Approval and Special Market Access Administrative Measures on Hong Kong and Macau Service Suppliers in the Mainland.
Both developments took effect on 1 June 2016, the same day as the Agreement on Trade in Services between Mainland China and each of the special administrative regions in Hong Kong and Macau under CEPA (each, a CEPA Agreement).
The measures implement a record-filing procedure for the establishment (and subsequent amendment) of subsidiary companies in Mainland China by qualified service suppliers from Hong Kong and Macau. The decision temporarily suspends the traditional examination and approval procedure for such companies and temporarily adjusts certain qualification requirements, restrictions on equity ownership and business scope, and other special market access administrative measures in certain sectors. The measures and the decision do not apply to certain restrictive sectors under the CEPA Agreements, telecommunications and culture sectors, and financial institutions.
Companies that fall within the scope of the measures and the decision that were established in Mainland China by qualified Hong Kong or Macau service suppliers before 1 June 2016 are required to surrender their approval certificate and carry out an amendment of record-filing on MOFCOM’s online system.

Market reaction

Paul McKenzie, Managing Partner, Morrison & Foerster, Beijing and Shanghai

"These CEPA-related changes are part of the PRC government’s ongoing efforts to streamline regulatory formalities in relation to foreign investments. The switch to a record-filing system was previously made in the Shanghai Free Trade Zone and is contemplated in China’s draft Foreign Investment Law. Helpful for the investors having invested into relevant service industries via a CEPA structure to be the beneficiaries of the next stage in this incremental liberalization."

Action items

GC for subsidiaries already established in Mainland China by qualified Hong Kong or Macau service suppliers before 1 June 2016 will need to complete the amendment of record-filing on MOFCOM’s online system. GC for a service provider interested in establishing a new subsidiary in Mainland China will want to consider whether it or a related entity qualifies as a service supplier under the CEPA Agreements so that it can be benefit from the simplified procedure.

SAPPRFT revises rules on audiovisual program broadcast services

On 25 April 2016, the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) issued the Regulations on the Administration of Private Network and Directional Transmission of Audiovisual Program Services (专网及定向传播视听节目服务管理规定), which took effect on 1 June 2016 and simultaneously repealed similar rules issued in 2004.
The Administrative Provisions for the Internet Audio-Video Program Service 2007 (2007 Regulations), jointly issued by SAPPRFT and the Ministry of Industry and Information Technology (MIIT), remain in effect.
Specifically, the new regulations:
  • Refine the scope of application under the repealed rules to encompass the transmission of radio and television programs and other audio-visual programs directed to the public through local area networks, virtual private networks and directional transmission channels through the internet and other information networks to all types of reception devices.
  • Clarify the regulation of audiovisual media by differentiating the legal obligations of entities that provide audiovisual program content, integration and distribution services.
  • Maintain a high market entry barrier in the sector, meaning new audiovisual media will continue to be wholly domestically invested and broadcast only through China’s traditional media, though a Sino-foreign cooperation model is permitted in relation to the purchase and sale of program production, advertising, marketing and promotion, business co-operation, payment settlement and technical services, subject to a record-filing procedure in relation to the underlying cooperation agreement.
  • Require audiovisual program broadcast service providers to take various proactive measures, for example:
    • content providers must review content before showing and retain content for 60 days;
    • integrated control services providers must maintain a system for censoring and reporting programs that violate the regulations; and
    • distributors must develop systems to ensure the security of network transmissions.

Market reaction

He Jun, Partner, Hankun Law Offices, Beijing

"The new regulations together with the 2007 Regulations constitute an integrated regulatory framework on the new audiovisual media (other than the traditional media) which enhances governmental regulation and control in this area. The new rules restate the business should be state-owned or state-controlled in term of equity ownership, prohibiting the entry of foreign investors into this industry, while permitting joint venture or cooperation model in some specific areas. We need to wait and see what impact the new rules will bring to the industry potentially."

Action items

GC for companies in the audiovisual media sector in Mainland China will want to closely examine the new rules to ensure compliance throughout the distribution chain. GC for foreign audiovisual media companies that distribute product or provide ancillary services in China will want to pay particular attention to the new record-filing procedure for cooperative arrangements with licensed audiovisual media services providers.

State Council issues opinions to spur development of rental housing market

On 17 May 2016, the State Council issued the Several Opinions on Accelerating the Cultivation and Development of the Rental Housing Market (国务院办公厅关于加快培育和发展住房租赁市场的若干意见), with immediate effect. The opinions aim to standardise the rental housing market, address the chronic shortage of rental housing in China’s urban areas, and advance China’s overall urbanisation plan.
Specifically, the opinions call on the relevant administrative agencies to:
  • Increase the scale of the rental housing market by encouraging private developers to build new rental units and to convert commercial properties to residential use for rent subject to effective fire prevention facilities.
  • Encourage public-private partnerships (PPP) to improve the management and service levels of public rental housing originally invested and managed by government entities.
  • Enable qualified companies engaging in residential rental business to issue bonds and real estate securitisation products, and continue to develop trial real estate investment trusts, or REITs.
  • Encourage residents to rent housing by:
    • simplifying the procedures for using the housing provident fund to pay rent; and
    • clarifying that tenants without local household registration can obtain residence permits and local benefits (such as schooling and health care).
  • Provide tax preferences for registered companies, organisations and individuals engaging in residential rental business.
  • Clarify the legal rights and obligations of lessors and tenants, and implement model lease contracts, online signing and lease contract registration.
  • Support the standardised development of property agencies.

Market reaction

Paul Guan, Partner, Paul Hastings, Hong Kong

"This is one of the recent efforts of the Chinese central government to implement "supply-side reform" in the real estate sector, aiming to increase the usage efficiency of un-occupied or non-performing real estate. Some of the new policies are quite innovative – in particular, while traditionally it is extremely difficult (and rarely seen in the market) to get approvals for converting the permitted usage of real estate, it now appears that the local real estate authorities may allow conversion of commercial properties into residential use for rent. It is also very encouraging to see that pretty much all players in the residential renting businesses – landlords, tenants and real estate agents – may receive meaningful tax benefits. There have been decent deal flows in China’s rental apartment industry in the past, and we expect that this industry will draw more interest from domestic and international investors in terms of both equity and debt opportunities."

Action items

GC for companies engaged in the development, design or construction of residential real estate will want to study the opinions for potential opportunities and consider discussing specific projects and incentives on a named basis with the relevant government regulators.

Supplementary pension scheme rules to be amended

On 6 June 2016, the Ministry of Human Resources and Social Security (MOHRSS) circulated for public comment draft amendments to the Measures for Trial Implementation of Enterprise Annuity 2004 (2004 Enterprise Annuity Measures), which are the main rules governing enterprise annuity schemes in China. The draft amendments would make these rules more flexible and practical.
The key proposed changes include:
  • Lowering the upper limit of contribution percentages. For employers, the cap on contributions would be lowered to 8% from one-twelfth (or 8.3%) of all employees’ total salaries in the previous year. The cap on total contributions, that is, contributions by employers and employees, would be lowered to 12% from one-sixth (or 16.66%). Subject to these limitations, employers and employees are free to negotiate the specific contribution percentages.
  • Permitting the amendment and termination of annuity plans. Employers and employees would be permitted to change the terms and conditions of enterprise annuity plans by mutual agreement, or unilaterally under certain specified conditions, such as a contractual right, the dissolution of the company, or an event of force majeure.
  • Permitting the suspension and reinstatement of contributions. If a company experiences financial difficulties or a restructuring which leads to a default in contributions, the employer may suspend the contributions after consulting with the employees. After the contributions are reinstated, the employer and employee can make good the shortfall in accordance with the terms and conditions of the annuity plan.
  • Diversifying the means of taking pension benefits. After reaching the retirement age, employees would be permitted to withdraw pension benefits:
    • on a monthly basis;
    • by installments (as agreed); or
    • by purchasing an applicable commercial insurance product.
  • Expanding the scope of application of the rules. The amended measures would apply to all types of employers and their employees who have participated in the basic pension scheme under China’s social insurance regime.
Comments on the draft amendments may be submitted until 6 July 2016.
For more information on this development, see Legal update, China supplementary pension schemes rules to be amended. For more information on pension schemes in China, see Country Q&A, Regulation of state and supplementary pension schemes in China: Overview.

Market reaction

Xu Xiaodan, Partner, King & Wood Mallesons, Beijing

"China’s population is aging quickly, posing great challenges to the country’s retirement system. Enterprise annuity is a second-pillar retirement system in China, in addition to the first-pillar of Chinese public retirement system. Hence the success of enterprise annuity is of vital importance to China. Clearly, the more flexible and practical rules provided by the draft amendments will have positive effect on the development of enterprise annuity plans. However, the retirement system is complicated and many issues such as governance, taxation, supervision and investment need to be tackled. The draft amendments are just a step toward the development of enterprise annuities in China."

Action items

GC for any company with employees in China will want to closely study the proposed changes as well as any current enterprise annuity plans, and consider discussing with employee representatives, to determine if and how to implement an attractive scheme in anticipation of the amended rules.

SAFE expands at will conversion and use of foreign debt proceeds

On 9 June 2016, the State Administration of Foreign Exchange (SAFE) issued the Notice of the State Administration of Foreign Exchange on Reforming and Standardizing the Administrative Provisions on Capital Account Foreign Exchange Settlement 2016, with immediate effect. The notice reforms the settlement and payment by domestic institutions (including foreign invested enterprises and purely domestic businesses and institutions) of foreign debt proceeds.
Specifically, the notice:
  • Implements, on a nationwide basis, certain reforms initially put into practice in China’s four pilot free trade zones that permit the conversion and use of foreign debt proceeds on a discretionary basis, except where that settlement and payment is restricted under other rules.
  • Provisionally caps at will foreign exchange settlements at 100% of a domestic institution’s foreign debt proceeds (but retains SAFE’s authority to lower this ratio as necessary in view of China’s foreign exchange reserves).
  • Permits domestic institutions to continue to operate under the old payment and settlement system, which permits conversion in accordance with an institution’s specific payment obligations on the strength of appropriate documentation. However, it restricts the use of Renminbi obtained in settlement to make payments under the new system.
  • Requires capital account foreign debt proceeds to be settled and paid out through a special Settlement and Accounts Payable Bank Account, which can be used to facilitate settlement and payment for all types of capital account needs.
  • Standardises the settlement and payment of capital account foreign exchange funds through the use of a nationwide Capital Account Funds Letter of Payment Order form.
For more information on foreign exchange control in China, see Practice note, Foreign exchange control in China.

Market reaction

Zhang Xin, Partner, Global Law Office, Beijing

"The step taken by SAFE to expand the "at will" conversion and use of foreign debt proceeds on a nationwide basis shows an increasing degree of flexibility of the regulator in tackling the PRC’s prominent foreign exchange issues, based on a macro-prudential regulatory approach. While it is quicker than originally expected after SAFE allowed the FTZs to carry out a pilot test in this area, this move should be welcomed by foreign debt borrowers because it not only provides a useful tool for managing foreign debt proceeds onshore but also potentially expands such proceeds’ scope of use."

Action items

GC for any company that uses (or that is considering the use of) cross-border debt financing for a China registered subsidiary will want to work with finance colleagues to compare and contrast the new “at will” system with the traditional system for converting and using foreign debt proceeds to determine the most appropriate structure and system for their particular business going forward.

SAPPRFT reigns in mobile gaming industry

On 24 May 2016, the SAPPRFT issued the Notice on the Administration of Mobile Game Publication Services (关于移动游戏出版服务管理的通知), which will take effect 1 July 2016. The notice fleshes out the Provisions on Administration of Web Publishing Services 2016, which took effect on 10 March 2016, in relation to the publication of mobile games.
According to the notice, from 1 July 2016, mobile games can be published in China only after completing an approval procedure with the SAPPRFT, and a game publishing services unit must carry out the approval procedure before 1 October 2016 for any mobile game that is already on the market.
Mobile games that meet all of the following criteria may carry out a simplified approval procedure:
  • The game copyright is held by a domestic company or individual.
  • The game does not involve sensitive subjects such as politics, the military, ethnicity or religion and has no plot or has only a simple story line.
  • The game is of a casual genre.
Foreign owned mobile games and domestically held games that do not meet the above criteria are subject to a more complex approval procedure.
The notice requires a game publishing services unit to complete a new application procedure for new versions of mobile games, including updates and spin-offs, and to carry out an amendment procedure in relation to any changes to the game publishing services unit, the operating unit or the name of the game.
For more information on this development, see Legal update, SAPPRFT issues notice on mobile game publication services.
For more information on the online publishing services, see Legal update, SAPPRFT and MIIT issue revised online publishing provisions.

Market reaction

He Jun, Partner, Hankun Law Offices, Beijing

"The notice shows SAPPRFT’s determination to strictly regulate mobile games. Most provisions in the notice restate and specify previous regulations such as the Provisions on the Administration of Network Publishing Services. To ensure enforcement, the notice imposes on operating platforms and manufacturers of mobile terminals the responsibility to review mobile games licenses. Though no specific penalty rules are contained in the notice, pressure can be imposed on operating platforms and manufacturers of mobile terminals to encourage compliance."

Action items

GC for companies involved in the production and distribution of mobile games in China will want to become familiar with the new requirements under the notice and ensure all games are properly licensed before being placed on the market after 1 July 2016. GC for companies with product already being distributed in China will want to carry out the approval procedure before 1 October 2016.