GC Agenda China: December 2017 | Practical Law

GC Agenda China: December 2017 | 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: December 2017

Practical Law UK Articles w-012-4234 (Approx. 7 pages)

GC Agenda China: December 2017

by Brad Herrold, Consultant and Practical Law China
Law stated as at 29 Dec 2017China
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.

SAFE further tightens controls on outbound bank guarantees

On 24 November 2017, the State Administration of Foreign Exchange (SAFE) issued the Notice on Perfecting the Foreign Exchange Administration of Outbound Guarantees of Foreign Loans by Domestic Banks (关于完善银行内保外贷外汇管理的通知) which aims to strengthen the foreign exchange control of domestic banks that provide outbound guarantees by requiring banks to:
  • Confirm the qualifications of an offshore borrower, where it is directly or indirectly controlled by a domestic resident, by mainly examining whether it meets the relevant administrative requirements on outbound investment.
  • Conduct due diligence to confirm the likelihood of an offshore borrower's performance by identifying the source of the borrower's first repayment, operating status, debt ratio and so on.
  • Accept primary liability and perform using their own funds, where a default on the principal debt occurs, instead of performing by purchasing foreign exchange on the strength of a counter-guarantee.
The notice also reiterates that the proceeds of a foreign loan may not be used to engage in arbitrage or other speculative transactions, such as investing in China's inter-bank bond or securities markets. Where the proceeds are used to obtain the equity or debt of another foreign institution, the investment must be consistent with China's policy guidance and administrative rules on outbound investment. (For more information on the latest outbound investment rules issued in December 2017, see Legal update, NDRC issues new outbound investment rules.)
In practice, SAFE may interpret the notice to also apply to any domestic entity that guarantees an offshore loan, and not just to banks.

Market reaction

Stanley Zhou, Partner, King & Wood Mallesons, Shanghai

"The new SAFE rules reiterate and strengthen the compliance requirements on outbound guarantees by PRC banks and will significantly impact cross-border financing structures that support overseas investment and acquisitions by Chinese companies. Specifically, it will be more difficult for ODI transactions that have not completed the necessary PRC regulatory procedures to obtain offshore financing or to transfer money out of China."

Action items

Counsel for any bank or other onshore entity that guarantees an offshore loan should take steps to ensure compliance with the new due diligence requirements and other restrictions and consider seeking specialist advice in relation to structuring complications that stem from the notice. Counsel of any borrower of an offshore loan should ensure that the use of loan proceeds for outbound investment is compliant with the latest outbound investment rules.

China to further open financial markets

According to the website of the State Council Information Office (SCIO), vice finance minister Zhu Guangyao announced at a press briefing held on 10 November 2017 that China would relax and eventually eliminate foreign ownership restrictions in the banking, securities and insurance industries.
The changes, which are intended to promote competition and attract foreign capital in China's financial services sector, include:
  • The foreign ownership cap on securities, fund management and futures firms will be raised to 51% for a three-year period. After three years, the cap will be lifted, and foreign investors will be permitted to hold 100% of these entities.
  • The foreign ownership cap on Chinese banks and financial asset management firms will be lifted, and foreign investment in this sector will be subject to the same rules as domestic investment.
  • After three years, the foreign ownership cap on insurance companies that engage in life insurance business will be raised to 51% from 50%. After five years, the cap will be lifted, and foreign investors will be permitted to hold 100% of these entities.
Each policy change will be carried out pursuant to specific regulations to be formulated or revised by each relevant industry regulator in accordance with Chinese law. Vice minister Zhu did not indicate a specific time frame for implementing the changes.

Market reaction

Natasha Xie, Partner, Junhe, Shanghai

"The reforms may not necessarily change the current market landscape but will definitely benefit the industry because of the best practices that may be brought to China. This could usher in a new era of foreign competition, which could force China's domestic financial institutions to become more efficient. The lack of a timetable is, however, equally significant, and the proof will lie in each piece of legislation and how each piece is interpreted and enforced over time."

Action items

GC for foreign companies in the banking, securities and insurance industries will want to discuss the pending changes with business colleagues. Foreign shareholders that currently hold minority positions in financial joint ventures may wish to consider how and when to approach their Chinese counterparts to determine if a shareholding change would be feasible once the new rules are implemented.

MHRSS repeals Circular 481 on employee compensation

On 24 November 2017, the Ministry of Human Resources and Social Security (MOHRSS) issued the Notice of the Fifth Batch of Documents Declared Invalid and Repealed (人力资源社会保障部关于第五批宣布失效和废止文件的通知).
The list of repealed rules includes the Measures on Economic Compensation for Violating or Terminating Labour Contracts 1994 (违反和解除劳动合同的经济补偿办法), which was the seminal rule for calculating economic employee compensation for violating or terminating a labour contract.
Provisions of the 1994 measures were largely superseded by the Labour Contract Law of the People's Republic of China 2012 (2012 Labour Contract Law), which was originally adopted in 2008 and subsequently amended and issued anew in 2012. However, the continued existence of the 1994 measures led to differing interpretations of some compensation issues in practice. By repealing the 1994 measures, the MHRSS has clarified that an employee's economic compensation is determined:
  • By reference to the 1994 measures for the service period before 1 January 2008.
  • Pursuant to the 2012 Labour Contract Law and related implementing rules for the service period after 1 January 2008.
The repeal of the 1994 measures puts an end to the dispute on whether the special rules in the 1994 measures would apply when determining employee compensation for the service period after 1 January 2008.
The 1994 measures also provided a system for determining the medical subsidy upon termination of employment where an employee suffers illness or non-work-related injuries and is unable to perform the duties under the original position or a reassigned position. However, the repeal of the 1994 measures does not completely abolish this medical subsidy system as the mechanism is still imbedded under other legislation (see Practice note, Sick leave management in China: Severance pay and medical subsidy on termination of employment).

Market reaction

Jonathan Isaacs, Partner, Baker & McKenzie, Hong Kong

"There may still be a split among the courts regarding how to calculate statutory severance for the pre-2008 years of service, since some local courts have been applying the Labour Contract Law rules on severance even for this period (such as imposing relevant caps), while other courts apply the pre-2008 rules for severance calculation in line with the grandfathering provisions in the Labour Contract Law. It remains to be seen whether this repeal will have any impact on how courts handle this issue.”

Action items

GC for any company or other organisation with employees in China should review current procedures with human resources colleagues to ensure employee termination compensation is calculated in compliance with the 1994 measures for the service period before 1 January 2008, and the 2012 Labour Contract Law and related implementing rules for the service period after 1 January 2008.

NPC Standing Committee circulates second draft of E-commerce Law

On 7 November 2017, the National People's Congress (NPC) Standing Committee circulated for public comment the Electronic Commerce Law of the People's Republic of China (Draft for Second Review) (电子商务法(草案二次审议稿)征求意见).
The second draft is significantly restructured with important changes including:
  • Redefining the term "e-commerce operator" to include e-commerce platform operators, businesses that sell goods or provide services through their own platforms, and vendors on third-party platforms.
  • Clarifying the types of e-commerce activities that are exempt from registration, and requiring platform operators to disclose vendor information to, and to facilitate vendor registration with, the tax authorities and company registrar.
  • Requiring platform operators to mark paid search items as "advertising" and imposing joint and several liability on platform operators who receive notice of an infringement but fail to take necessary measures.

Market reaction

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

"With the release of a second draft of the Electronic Commerce Law, the NPC is one step closer to promulgation of the final law. Sensibly, the drafters trimmed certain provisions from the first draft and, for example, cross-referenced the data privacy provisions of the Cyber Security Law rather than including discrete data privacy clauses. The specifics of e-commerce operators' obligations in relation to consumer data will become clearer as various ambiguities and uncertainties under the Cyber Security Law are addressed."

Action items

Counsel for e-commerce platform operators, businesses that sell goods or provide services through their own platform, and vendors on third-party platforms should carefully consider the obligations imposed on them under the new draft and discuss relevant compliance issues with business colleagues.

SPC issues 17th batch of guiding cases

On 24 November 2017, the Supreme People's Court (SPC) issued its 17th batch of guiding cases (GCs).
GCs are not binding as legal precedents, but judges must consider and refer to them when adjudicating similar cases (see Practice note, Understanding Chinese legislation: Guiding cases).
This batch (GCs No. 88 to 92) addresses the following issues respectively:
  • An administrative agency violates administrative procedure if it fails to inform applicants of the expiration date of a licence but cancels it subsequently. The court must only order the withdrawal of the unlawful cancellation where it will not adversely affect the public interest and administrative order.
  • Chinese citizens must use their parents' surnames in principle but have the right to use another surname under limited circumstances, provided they are consistent with traditional Chinese cultural mores.
  • A court must uphold an administrative penalty for violating a rule issued by a public security organ that requires motor vehicle drivers to yield to pedestrians if there is no traffic signal in a designated crosswalk.
  • A court must uphold a claim for administrative compensation for the loss of personal belongings in a forced demolition of residential property where the claim does not exceed the common-sense market value for such property and the homeowner provides preliminary evidence of the loss, but is unable to provide evidence of the damages due to a failure by the administrative agency to lawfully register the property before the demolition.
  • In a dispute to determine whether a variety of corn is sufficiently distinct to constitute a separate variety, the burden of proof is borne by the party asserting that the distinctions are sufficient to constitute a separate variety.