GC Agenda China: March 2017 | Practical Law

GC Agenda China: March 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: March 2017

Practical Law UK Articles w-007-1685 (Approx. 8 pages)

GC Agenda China: March 2017

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

NPC enacts general provisions of civil code

On 15 March 2017, the National People's Congress (NPC) enacted the General Provisions of the Civil Code of the People's Republic of China (中华人民共和国民法总则), which will take effect 1 October 2017.
The general provisions are comprised of existing civil norms and legal rules based on, and developed from, the General Principles of the Civil Law of the People's Republic of China 1986. The civil code will be expanded in future to include more specific chapters governing property rights, contracts, tort liability, family law and inheritance.
Top highlights of the new or revised civil norms in this final version include:
  • Providing civil capacity to protect the property and personal rights of a foetus, provided the foetus survives the pregnancy.
  • Obligating adult children to care for, support and protect their parents, even where the parents have full civil capacity.
  • Lowering the age for the limited civil capacity of minors to eight years old from ten years old.
  • Clarifying the scope of non-profit legal persons to include foundations and social service organisations.
  • Prohibiting any person from collecting, utilizing, processing, transmitting personal data illegally or supplying, making public or selling personal data illegally.
  • Providing increased protection for virtual property rights, including data information and networks.
  • Increasing the statute of limitations to three years from two years.
For more coverage of this development, see Legal update, China enacts general provisions of civil code.

Market reaction

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

"The General Provisions represent the first step in putting in place a comprehensive national civil code, which will ultimately supplant the patchwork of laws and regulations that currently comprise China's civil law system. It is an important milestone in the development of China’s legal system. However, likely of greater concrete relevance to international businesses will be the legislative work still to come in completing the full civil code, which official commentary suggests will include chapters addressing matters such as property rights, contracts, infringement of rights, marriage and family, and inheritance. An aggressive legislative schedule has been set, with the various individual chapters to be submitted to the standing committee of the NPC for review and approval by 2018 and the full civil code to be presented to the NPC itself for approval by 2020."

Action items

Counsel for companies that might be involved in litigation in China should note the extension of statute of limitations for protecting civil rights to three years from two years. Counsel will want to watch for circulation of draft chapters that address specific areas of Chinese law, such as property rights and contracts that may affect clients in China, particularly insofar as these developments impact the rights of customers, employees and other interested parties.

SPC issues 16th of guiding cases

On 9 March 2017, the Supreme People’s Court (SPC) issued the 16th batch of guiding cases.
Guiding cases are not binding as legal precedents, but they are considered to have very strong persuasive value, and judges in China should consider and refer to the guiding cases when adjudicating similar cases (See Practice note, Understanding Chinese legislation: Guiding cases).
This new batch of guiding cases (No.78-87) is focused mainly on issues related to intellectual property.
  • Abuse of a dominant market position. Where there is direct evidence of an exclusion or obstruction of competition, there is no need to clearly define the relevant market position to establish an abuse of market dominance. In the field of internet, when determining whether there is a dominant market position, courts should not simply consider the market share. (Guiding case No. 78.)
  • Copyrights. Those parts of a derivative work based on folk literature or art that constitute a complete and original creation are protected (Guiding case No. 80).
  • Trade marks. In criminal counterfeiting cases, courts must consider various types of evidence, including network sales data, in calculating the amount of illegal business and income, absent evidence to challenge the credibility of such evidence. Without supporting evidence, courts should not consider the defendant's claim that the network sales record contains false trading. (Guiding case No. 87.)
  • Patents. If an alleged infringing design does not contain all distinctive features of an authorised design patent, it is generally possible to presume that it is not similar to the authorised design patent (Guiding case No. 85).
For more coverage of this batch of cases, see Legal update, SPC issues 16th batch of guiding cases.

Market reaction

Dr. Mei Gechlik, Founder and Director of Stanford Law School's China Guiding Cases Project

"The release of the 16th batch of guiding cases brought their total number to 87, of which 20 are related to intellectual property or China’s Anti-Unfair Competition Law and Anti-Monopoly Law. These guiding cases cover, among others, patents (Nos. 20, 55, and 83-85), trademarks (Nos. 30, 46, 58, 82, and 87), copyrights (Nos. 48-49, 80-81), plant variety rights (No. 86), and antimonopoly disputes (Nos. 78-79). Qihoo v. Tencent, the first internet-related antimonopoly case handled by the SPC was released as No. 78. We expect this case will be widely cited in subsequent cases involving analyses of relevant market and market dominance."

Action items

Given the impact of guiding cases on China's judiciary, counsel for companies and individuals involved in litigation in China should become familiar with the guiding cases generally. This batch may have relevance to disputes involving intellectual property rights, as well as challenges to allegedly anti-competitive conduct involving the dominance of a client’s market position. Counsel will want to ensure that trial counsel is familiar with any relevant guiding case.

SPC publishes Mainland-Hong Kong arrangement on evidence taking

On 28 February 2017, the SPC published the Arrangement between the Courts in the Mainland and the Hong Kong Special Administrative Region on Mutually Entrusted Taking of Evidence in Civil and Commercial Matters (关于内地与香港特别行政区法院就民商事案件相互委托提取证据的安排), which took effect from 1 March 2017.
The arrangement represents the latest in a series of reciprocal judicial arrangements between the Mainland and Hong Kong, and permits mutually entrusted taking of specified forms of evidence in civil and commercial matters between both sides with a letter of request (LoR) addressed from one side to the other.
An entrusted taking request must be raised through designated liaison authorities of both sides, which means:
  • Higher People's Courts for the Mainland.
  • The Administrative Wing of the Chief Secretary for Administration for Hong Kong.
Under the arrangement, evidence may be taken in accordance with the laws of the requested party's jurisdiction, and may only be used for the particular case specified in the LoR.
With the consent of a requested party, the judicial officials of a requesting party, as well as the parties and their legal representatives, may attend the taking of evidence.
The taking of evidence must be completed as far as practicable within six months from the date when the requested party receives the LoR.

Market reaction

Robert Pe, Partner, Gibson Dunn, Hong Kong

"Taking evidence in Mainland China for use in proceedings outside the Mainland has historically been fraught with difficulties. The conduct of depositions for use in overseas proceedings is prohibited. Much publicised and broadly drafted state secrets laws mean it is risky to take documents out of the Mainland. This new arrangement is therefore to be welcomed and further strengthens Hong Kong's position as the natural venue for the resolution of commercial disputes arising from investments in the Mainland."

Action items

GC for clients involved in disputes with Mainland (or Hong Kong) counterparties will want to be aware of the reciprocal arrangement generally and work with trial counsel to consider any tactical advantages presented by the arrangement.

PBOC issues revised rules on cross-border financing

On 11 January 2017, the People's Bank of China (PBOC) issued the Notice on Matters relating to the Macro-prudential Administration of Overall Cross-border Financing (关于全口径跨境融资宏观审慎管理有关事宜的通知).
The notice applies to domestic enterprises and foreign-invested enterprises (FIEs) (excluding real estate enterprises and government financing platforms) and financial institutions (including domestic banks and non-bank financial institutions and the China branches of foreign financial institutions) that borrow RMB or foreign currency from non-residents.
Specifically, under the notice:
  • The cross-border financing leverage ratio for enterprises is increased from one to two, which means that enterprises may double the fund quota raised from the international capital market.
  • Passive indebtedness, such as investments by foreign institutions in domestic bonds and custodial funds deposited by QFII and RQFII, as well as trade financing, proceeds from Panda bonds and so on, are excluded from the calculation of cross-border financing risk-weighted balance.
  • Enterprises and financial institutions must use the same currency to conclude contracts on cross-border financing, drawdown such financing, and repay such financing.
  • The cross border financing risk-weighted balance and its upper limit must be calculated in RMB, and foreign currency cross-border financing must be converted and calculated according to the exchange rates applicable on the drawdown date, according to the China Foreign Exchange Trading System.
For more coverage of this development, see Legal update, PBOC issues revised rules on cross-border financing.

Market reaction

Shirley Wang, Partner, Zhong Lun Law Firm, Beijing

"The notice unifies the management of RMB and foreign currency external debt, further standardises the regulations on the cross-border financing of Chinese enterprises and financial institutions, and further relaxes the quota on the cross-border financing of Chinese enterprises."

Action items

GC for domestic-invested companies and FIEs that require inbound financing may wish to work with their finance colleagues and external counsel to study the revised inbound lending rules, and particularly the doubling of the cross-border financing leverage ratio, to determine if the changes present better offshore financing options for the company.

NPC deliberates on draft Anti-unfair Competition Law

On 26 February 2017, the NPC deliberated and circulated for public comment a revised draft of the Anti-unfair Competition Law of the People's Republic of China (中华人民共和国反不正当竞争法(修订草案)). The final version of the draft will represent the first revision of the law since it was initially enacted in 1993.
The key changes in the draft for deliberation include:
  • Scope of application. The draft refines the scope of the law to apply expressly to market conduct that violates the principles of fairness and good faith and disrupts competitive order in the market.
  • Commercial bribery. The draft expands the scope of commercial bribery to include the acts of bribery of or by third parties that could influence a transaction. The draft also attributes the bribery acts of employees to their employers, unless the employer can prove otherwise.
  • Trade secrets. The draft expands the protection of trade secrets to apply to not only third party infringers, but also to current and former employees who improperly obtain trade secrets as well as government officials, lawyers, accountants and other advisors who improperly disclose proprietary information.
  • Internet. The draft includes a new provision that prohibits various activities that affect an internet user's choices or that interfere with a competitor's normal internet operations.
  • Whistleblowers. The draft provides express rights and protections for whistleblowers in relation to acts of unfair competition.
For more coverage of this development, see Legal update, NPC deliberates on draft Anti-unfair Competition Law.

Market reaction

Aldo Boni de Nobili, Associate, Hogan Lovells, Beijing

"The draft revisions to the Anti-unfair competition Law is one of several forthcoming legal reforms in China which will greatly impact the business community. The draft fits in with China's long-term plan to design and implement a more coherent and comprehensive legal system that provides greater confidence and certainty for investors."

Action items

GC for companies operating in China will want to carefully study the draft, particularly the changes and additions in areas governing commercial bribery, intellectual property and potential abuses of a dominant market position, proprietary technology and network technology, and recommend proactive adjustments to business practices and record keeping procedures, employment contracts and handbooks, and other internal procedures and controls.

Shanghai encourages MNC regional headquarters establishment

On 27 January 2017, the Shanghai Municipal People's Government issued the revised Provisions on Encouraging Multinational Corporations to Establish Regional Headquarters in Shanghai Municipality (上海市鼓励跨国公司设立地区总部的规定). The provisions replace similar rules issued in 2012 (and supplemented in 2014) and will be in effect for a five-year period beginning 1 February 2017.
The prior version of the provisions limited the scopes of business of a regional headquarters (RH) or head office institution (HOI) to investment or management activities. The current provisions no longer contain this limitation.
The provisions further clarify the definition and criteria for a qualified HOI and contain the following preferential policies to encourage qualified multinationals to establish a RH or HOI in Shanghai:
  • Subsidies and awards. RHs may be eligible for start-up and rental subsidies, and RHs with centralised operational functions that have made "outstanding contributions to economic development and achieved good results" may be eligible for awards, in accordance with rules to be promulgated separately.
  • Fund management. RHs and HOIs may establish a unified internal system for managing its own funds, conduct foreign exchange settlement and remittance, establish a subsidiary finance company to provide centralised financial management services for its China affiliates, carry out various types of cross-border financing, and so on in accordance with current rules.
  • Personnel. RHs and HOIs may obtain APEC travel cards and household registration certificates for qualified domestic employees and preferential visas and residence permits for expatriate employees and their spouses and children.
  • Customs clearance. RHs and HOIs may obtain expedited customs clearance, establish integrated logistics centres, and receive preferential treatment from the departments in charge of customs, foreign exchange and immigration inspection and quarantine supervision.
  • District-level incentives. The provisions permit Shanghai's district governments to formulate policies and measures to support the development of RHs and HOIs.

Market reaction

Carl Erik Heiberg, Counsel, O'Melveny & Myers, Shanghai

"The revised provisions are an encouraging development. They include several changes to encourage MNCs to consider establishing a regional headquarters in Shanghai, including removal of business scope restrictions and the introduction of "quasi-headquarter entities", both of which will allow greater flexibility in structuring centralised support service functions. We should expect to see different district governments in Shanghai competing to encourage relevant MNCs to establish regional headquarters in their respective districts. As with most Chinese regulations, we will need to wait until implementing rules are issued to understand the specific incentives and reward policies."

Action items

GC for foreign multinationals with medium or long term plans for centralising various regional management functions may wish to work with business, personnel, logistics and government relations colleagues to identify and negotiate a range of specific incentives with officials in Shanghai. Counsel also may wish to conduct similar enquiries with competing municipalities to maximise the benefits of any available package, even where Shanghai is the preferred location.