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股比及高管限制？
①法律概念与规则解释：外商投资国际海运及辅助服务涉及市场准入与资本比例的法定限制。根据相关投资规则，在涉及国际客货运输、国际船舶代理及管理、装卸及集装箱站等业务领域，外资通常只能采取中外合资或中外合作形式设立企业，且外资股比设有严格上限，以保障中方在核心航运业务中的主导权。②案件事实与实务场景引用：文章指出，在国际海上客货运输等业务中，外资比例最高不得超过注册资本的百分之四十九。同时，在合资企业的治理结构安排上，明确规定董事长和总经理必须由中方委派。在高级管理人员资质方面，要求国际海运企业高管需具备交通部门认可的资格证书，国际船舶代理企业则需拥有至少两名具备三年以上国际海运经验的中方高级管理人员。③实务指引与风险提示：跨国物流企业在设立海运合资企业时，需严格审查中方合作伙伴的资质与资源，确保符合交通与商务部门的双重审批要求。实务中应重点关注股权架构设计，避免因外资比例超标导致审批受阻。此外，企业高管任免必须遵守中方委派规则，切勿在章程中违规设定外方控制权，否则将面临无法取得国际海运经营资质及营业执照的合规风险。
港澳投资者在中国物流航运业享有哪些特殊待遇？
①法律概念与规则解释：CEPA安排作为区域经济合作的法律框架，为香港和澳门投资者在内地特定行业的投资提供了优于一般外商投资的准入条件。该机制突破了世贸组织承诺的过渡期限制或股比约束，允许港澳资本在部分物流与航运领域以独资形式开展业务，体现了更紧密经贸关系的特殊政策导向。②案件事实与实务场景引用：文章明确提及，依据CEPA安排附件，港澳投资者可设立外商独资企业经营国际船舶管理业务、国际海运货物仓储业务以及国际海运集装箱货运站和集装箱堆场服务。此外，港澳资本还可设立独资航运公司。这与一般外商在国际海运货物仓储等领域虽可独资但在船舶代理等核心业务受限的情况形成对比，进一步拓宽了港澳资本的运营空间。③实务指引与风险提示：港澳物流企业在进入内地市场前，应准确界定自身业务是否落入CEPA优惠目录，并准备符合香港或澳门服务提供者定义的实质性经营证明文件。实务操作中，需防范因对【服务提供者】身份认定不符导致的税收或准入优惠落空风险。企业应充分利用独资优势优化内部治理，但仍需遵守内地交通及商务管理部门的后续监管与合规审查。
外商能否在中国从事内河运输及航空运输业务？
①法律概念与规则解释：内河运输与航空运输属于涉及国家经济安全与基础设施的关键领域，其市场准入受到严格的法律规制。外商投资此类领域需遵循特定的产业指导目录，通常被列入限制类项目。法律原则上禁止外资涉足国内港口间的内河运输，对航空运输的开放也仅限于特定的辅助性服务，以保护国内运输市场的自主性。②案件事实与实务场景引用：文章引用中国入世承诺及外商投资产业指导目录指出，在水路运输方面，外商仅被允许在对外开放的港口从事国际运输业务，明确禁止外国船舶经营国内港口之间的内河水路运输，且水运公司被列入限制类项目。在航空运输领域，中国仅承诺开放飞机维修和计算机订座系统服务，对航空运输企业的建设与运营则未予开放，体现了严格的准入限制。③实务指引与风险提示：跨国物流企业在规划中国业务版图时，需严格区分国际与国内运输业务的边界，切勿违规承接国内港口间的内河货运订单，以免触碰非法经营的监管红线。在航空领域，外资企业应将合作重心放在飞机维修及订座系统等开放环节，避免试图直接投资航空客货运输企业。实务中需建立严格的业务范围审查机制，防范超范围经营带来的行政处罚风险。
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
