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
外国投资者能否独资经营国际海运业务？
根据文章所涉法律规则，外国投资者通常不能独资经营国际海运业务。在国际海运的货运和客运、国际船舶代理、国际船舶管理、国际海运货物装卸、集装箱站和堆场等业务中，只能设立中外合资经营企业或中外合作经营企业，外国投资比例不得超过合资企业注册资本总额的百分之四十九，且合资企业的董事长和总经理应由中方指定。这一持股上限与治理权安排体现了对外资进入该领域的严格管控。文章还明确了例外情形：国际海运货物仓储服务和船舶日常服务允许设立外商独资企业；依据内地与香港、澳门更紧密经贸关系安排，港澳投资者可以在国际船舶管理、国际海运货物仓储、集装箱站和堆场及船务公司等业务中设立独资企业。实务中，普通外国投资者应首先判断拟投资业务是否属于限制独资的范畴，再确定合资路径；港澳投资者则应主动核验自身主体资格，以利用特殊优惠。此外，企业名称、经营范围表述须与审批机关要求一致，避免因表述模糊导致审批延误。
设立中外合资国际海运企业需要满足哪些条件？
设立中外合资经营的国际海运企业，法律对投资者资质和企业运营条件有明确要求。在企业层面，合资企业应拥有适合从事国际海运的船舶，其中包括中国籍船舶；应具备提单、船票或多式联运发票；高级管理人员需持有交通主管部门颁发的合格证书。这些条件旨在确保企业具备实际运营能力和合规基础。在人员层面，国际船舶代理企业的高级管理人员中，至少应有两人具有三年以上国际海运从业经验；高级管理人员是指具有中级以上专业技术职称的中国公民，并在国际海运或辅助企业中担任部门经理以上职务。此外，企业还需有固定经营场所和必要设施，并具备与港口局或海关等政府部门进行电子数据交换的能力。设立程序上，需先向交通主管部门申请，获得批准文件后向商务主管部门申请设立，再到工商部门登记注册，最终取得国际海运及国际船舶代理业务的批准证书，经营期限一般不超过二十年。实务中，企业应提前准备船舶所有权证明、高管资质证明、电子数据交换能力说明等材料，并注意中方对合资公司董事长和总经理任命的控制权要求。由于审批涉及多个部门，建议预留充足时间，并关注政策调整对持股比例和经营期限的影响。对于国际船舶代理业务，投资者应确保拟任高管满足年限和职称条件，避免因人员资质不符导致审批受阻。
外国投资者投资中国物流业需要关注哪些政策文件？
外国投资中国物流与航运业涉及多层次的政策法律框架，投资者须系统梳理。文章首先指出中国加入世界贸易组织时作出的入世承诺附件，其中明确了海运、内河、航空、铁路、公路、仓储和货代等领域的开放范围；随后是外商投资产业指导目录，对鼓励、限制和禁止类项目作出分类；关于试点设立外资物流企业的通知确定了江苏、浙江、广东、北京、天津、重庆、上海、深圳等地区的合资试点；国家发展改革委、商务部等九部门发布的促进现代物流发展的意见则体现了政策导向。这些文件构成基础性依据。此外，各细分领域还有专项规章：国际海运领域的专项规章对外资持股比例、投资条件与审批程序作出详细规定；公路运输领域也有相应管理办法及其补充规定；国际货运代理行业设有专门的外商投资管理规定。根据更紧密经贸关系安排附件，香港和澳门投资者可在国际船舶管理、国际海运货物仓储、集装箱站和堆场以及船务公司等业务中设立外商独资企业，这是普通外国投资者所不能享有的优惠。实务中，投资者应根据自身业务类型，首先判断属于鼓励、限制还是禁止类项目，再查找对应的专项规章。同时注意试点地区范围、合资比例限制和审批流程。由于政策文件具有时效性，投资前应核实最新有效版本，并参考政府部门后续发布的意见，以便把握监管趋势。对于港澳投资者，应善用特殊安排以降低准入门槛。
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
