Longitudinal and Parallel Comparisons of the Negative Lists for Foreign Investment

文章摘要 2019年6月30日,国家发展改革委与商务部联合发布外商投资准入负面清单(全国版与自贸区版),均于同年7月30日实施。相比2018年版,全国版负面清单由48条减至40条,自贸区版由45条减至37条,并在矿业、制造业、交通运输、文体娱乐等多个领域取消或放宽外资限制。同时,新版鼓励外商投资产业目录扩大覆盖行业,进一步引导外资投向。文章通过纵向与横向比较,清晰展示两个版本清单的差异,为外资企业选择注册地及合规布局提供重要参考。

On the last day of June in 2019, the National Development and Reform Commission and the Ministry of Commerce jointly promulgated the Special Administrative Measures (Negative List) for Foreign Investment Access (Edition 2019) (“National List”) and the Special Administrative Measures (Negative List) for Foreign Investment Access in Pilot Free Trade Zones (2019 Version) (“FTZ List”) simultaneously, both of which will be implemented starting from July 30, 2019.  It is worth mentioning that the length of both lists has been further cut down based on their 2018 editions, with the items under the National List being reduced from 48 to 40 and the items under the FTZ List being reduced from 45 to 37. In addition, the encouraged industry list under the Catalogue of Industries for Guiding Foreign Investment (Revision 2017) and the Catalogue of Priority Industries for Foreign Investment in Central and Western China (Revision 2017) have been replaced by the Catalogue of Encouraged Industries for Foreign Investment (Edition 2019).  Compared with the two simplified negative lists, the encouraged industry catalogue of 2019 has increased items to encourage foreign investment in almost all industries.In order to assist foreign investors and those who are interested in cross border investment to get a clearer picture of the differences between Edition 2019 of the two lists and their Edition 2018, we have made two longitudinal comparisons.  Meanwhile, to further assist foreign investors to understand the differences between foreign investment access in and out of the free trade zones, we have also made a comparison between the National List and the FTZ List which aims to enable producers or traders to choose suitable registration places depending on their business needs. 

1. Longitudinal Comparison of the National Lists

Compared with the National List Edition 2018, the Edition 2019 has repealed all foreign investment access restrictions in seven sub-sectors of five industries, including mining, manufacturing, transportation, warehousing and postal services, water, environment and public facilities management, culture, sports and entertainment with details set forth below: 

Industry

2018

2019

Mining

The
 exploration and development of oil and natural gas (excluding coalbed
 methane, oil shale, oil sands, shale gas, etc.) are limited to joint ventures
 and cooperation.

Repealed

It
 is prohibited to invest in exploration and mining of molybdenum, tin,
 antimony, and fluorite.

Repealed

Manufacturing

It
 is prohibited to invest in the production of Xuan paper and ink sticks.

Repealed

Transportation,
 warehousing and postal services

Domestic
 shipping agencies must be controlled by the Chinese side.

Repealed

Water,
 environment and public facilities management

It
 is prohibited to invest in the development of wild animal and plant resources
 protected by the country that are originating in China

Repealed

Culture,
 sports and entertainment

The
 construction and operation of the cinema must be controlled by the Chinese
 side.

Repealed

Performance
 brokers must be controlled by the Chinese side.

Repealed

 

2. Longitudinal Comparison of the FTZ Lists

 Compared with FTZ List Edition 2018, the Edition 2019 has repealed any and all foreign investment access restrictions in 7 sub-sectors of six industries including agriculture, forestry, husbandry and fishery, mining, manufacturing, transportation, warehousing and postal services, water, environment and public facilities management, culture, sports and entertainment with details set forth below:

Industry

2018

2019

Agriculture,
 forestry, husbandry and fishery

Investment
 in aquatic product fishing in China and within China territorial waters shall
 be prohibited.

Repealed

Mining

Investment
 in exploration and mining of molybdenum, tin, antimony and fluorite shall be
 prohibited.

Repealed

Manufacturing

The
 Chinese party of printers of publications shall hold the controlling stake.

Repealed

Investment
 in manufacturing of Xuan paper and ink ingot shall be prohibited.

Repealed

Transportation,
 warehousing and postal services

The
 controlling stake of domestic shipping agencies shall be held by the Chinese
 party.

Repealed

Water,
 environment and public facilities management

Investment
 in development of State-protected wild animal and plant resources originated in
 China shall be prohibited.

Repealed

Culture,
 sports and entertainment

The
 controlling stake for construction and operation of movie theatres shall be
 held by the Chinese party. (Screening of movies shall comply with the time
 ratio for domestic films and imported films stipulated by the Chinese
 Government. The time for screening of domestic films annually of a movie
 theatre shall not be less than two-thirds of the total time for screening of
 movies annually of the movie theatre.)

Repealed

3. Parallel Comparison of the National List and the FTZ
List

 As mentioned above, compared with Edition 2018, both the National List and the FTZ List have been “simplified greatly”.  However, except for those two sub-sectors of the agriculture, forestry, husbandry and fishery, and manufacturing industries for which the foreign investment access restrictions (on development of State-protected wild animal and plant resources originated in China and printing of publications) have been repealed under the two Edition 2019 lists, the differences between the two Edition 2019 lists are almost the same as those between the two Edition 2018 lists.

Industry

National
  List

FTZ
  List

New
  Difference

I. Agriculture,
 forestry, animal husbandry and fishery

The
 selection and breeding of new varieties of wheat and corn, and seed
 production must be controlled by the Chinese side.

Chinese
 party shareholding in new variety breeding and seed production of wheat and
 maize shall not be less than 34%.

No

It
 is prohibited to invest in the fishing of aquatic products in sea and inland
 waters under China’s jurisdiction.

Repealed

Yes

II. Mining

It
 is prohibited to invest in exploration, mining and beneficiation of rare
 earth, radioactive minerals, and tungsten.

It
 is prohibited to invest in exploration, mining and beneficiation of rare
 earth, radioactive minerals, and tungsten. (Without permission, no person shall
 be allowed to enter rare earth mines or obtain mine geology information, ore
 samples and production technology.)

No

III. Manufacturing

The
 printing of publications must be controlled by the Chinese side.

Repealed

Yes

It
 is prohibited to invest in the smelting and processing of radioactive
 minerals, or production of nuclear fuel.

No restriction

No

VI. Transportation,
 warehousing and postal services

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Domestic
 water transportation companies must be controlled by the Chinese side.

Domestic
 water transportation companies must be controlled by the Chinese side. (Foreign investors shall not
 operate, or operate through disguised lease of Chinese vessels or berths
 etc., China domestic waterway transport business and auxiliary businesses
 thereof; water transport business operators shall not use foreign vessel(s)
 to operate domestic water transport business however if upon approval by the
 Chinese government where there is no Chinese vessel in China which can
 satisfy the transportation requirements, and the port or waters where the
 vessel is docked is opened to foreign vessels, the water transport business
 operator may use foreign vessel(s) temporarily within the term or voyage
 stipulated by the Chinese Government to undertake marine transport and towing
 between Chinese ports.)

No

The
 public air transport company must be controlled by the Chinese side, and the
 investment ratio of a foreign company and its affiliates must not exceed 25%.
 The legal representative must be a citizen of Chinese nationality.

The
 controlling stake in public aviation enterprises shall be held by the Chinese
 party, and the investment ratio of a foreign investor and its associates shall
 not exceed 25%. The legal representative shall be a Chinese citizen. (Only China designated public
 aviation enterprises can operate domestic aviation business, and provide
 regular and ad hoc international aviation services in the capacity of a China
 designated carrier.)

No

It
 is prohibited to invest in postal companies and domestic express delivery
 services.

Investment
 in postal enterprises (and
 operation of postal services) and domestic express mail business shall
 be prohibited.

No

VII.
 Information transmission, software and information technology services

Telecommunications
 companies: the telecommunication services are limited to those promised at
 China’s WTO accession, and foreign-invested shares of value-added
 telecommunications services must not exceed 50% (excluding e-commerce,
 domestic multi-party communication,store-and-forward business, call center);
 the basic telecommunications services must be controlled by the Chinese side.

Telecommunications
 companies: limited to telecommunications services opened up pursuant to
 China’s WTO commitments; the foreign investment ratio for value-add
 telecommunications services (except for e-commerce, , domestic multi-party
 communication,store-and-forward business, call center) shall not exceed 50%;
 the controlling stake of operators of basic telecommunications businesses
 shall be held by the Chinese party (and the operators shall be telecommunications companies established
 pursuant to the law to engage specifically in basic telecommunications
 businesses). The pilot scheme policies of the Shanghai Pilot Free Trade
 Zone’s original territory (28.8 square kilometers) shall be extended to all
 pilot FTZs.

No

XI. Education

 

 

 

 

 

 

 

 

 

 

Preschool,
 ordinary high school and higher education institutions are limited to
 Sino-foreign cooperative education, and must be led by the Chinese side (The
 principal or chief administrative officer shall have Chinese nationality, and
 Chinese members of the council, board of directors or joint management
 committee shall be no less than than 1/2).

Pre-school,
 ordinary high school and higher education institutions shall be limited to
 the form of Sino-foreign cooperative joint venture and led by the Chinese
 party (the principal or the key person-in-charge of administration shall be a
 Chinese national (and based in China); Chinese members shall comprise no less
 than half of the council, board of directors or joint administrative
 committee. (Foreign
 education institutions, other organizations or individuals shall not solely
 establish schools or any other educational institutions whose enrolment
 targets are mainly Chinese citizens (excluding non-academic vocational skills
 training), however, foreign educational institutions may cooperate with a
 Chinese educational institution to jointly establish educational institutions
 whose enrolment targets are mainly Chinese citizens).

No

XIII. Culture, sports and entertainment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Investment
 in news institutions (including but not limited to news agencies) is
 prohibited.

Investment
 in establishment of news organizations (including but not limited to news
 agencies) shall be prohibited. (Establishment of resident news agency in China and assignment of
 permanent correspondents to China by foreign news organizations shall be
 subject to approval by the Chinese Government. Provision of news services by
 foreign news agencies in China shall be subject to examination and approval
 by the Chinese Government. Business cooperation between Chinese and foreign
 new organizations shall be led by the Chinese party, and shall be subject to
 approval by the Chinese Government.)

No

It
 is prohibited to invest in the editing, publishing and production of books,
 newspapers, periodicals, audio-visual products and electronic publications.

Investment
 and operation of editing, publication and production of books, newspapers,
 periodicals, audio-visual products and electronic publications shall be
 prohibited. (However,
 subject to approval by the Chinese Government, provided that the Chinese
 cooperative party holds the operating dominance rights and the rights to
 final examination of contents, and that the parties satisfy other criteria
 such as compliance with approval reply of the Chinese Government, a
 Sino-foreign publisher may engage in Sino-foreign cooperative news publishing
 projects. Without approval by the Chinese Government, provision of financial
 information in China shall be prohibited.)

No

It
 is prohibited to invest in broadcasting stations, television stations, radio
 and television channels (frequencies), radio and television transmission
 coverage networks (transmission stations, relay stations, radio and
 television satellites, satellite uplink stations, satellite retransmission
 stations, microwave stations, monitoring stations and cable radio and
 television transmission coverage networks, etc.) at all levels. It is
 prohibited to engage in installation services for on demand services for
 broadcast television videos and ground reception facilities for satellite
 television broadcasting.

Investment
 in establishment and operation of all levels of radio stations, television
 stations, radio and television channel (frequency), radio and television
 transmission coverage networks (including transmitters and relay stations,
 radio and television satellites, satellite up-stations, satellite
 transmission stations, microwave stations, monitoring stations, cable radio
 and television transmission coverage networks etc.) shall be prohibited, and
 engaging in radio and television video on demand services and satellite
 television ground receiving facilities installation services shall be
 prohibited. (Landing of
 overseas satellite channels shall be subject to examination and approval.)

No

It
 is prohibited to invest in the production and operation of broadcasting and
 television programs (including the introduction of businesses).

Investment
 in radio and television program production and operation (including
 introduction of business) enterprises shall be prohibited. (Introduction of overseas
 television programs and introduction of other overseas television programs
 via satellite transmission shall be declared by units designated by the State
 Administration of Press, Publication, Radio, Film and Television.
 Sino-foreign cooperative production of television series (including
 television animation) shall be subject to licensing.)

No

It
 is prohibited to invest in film production companies, distribution companies,
 cinema companies, and film import business.

Investment
 in film production companies, distribution companies and cinema companies as
 well as film introduction business shall be prohibited. (However, upon approval,
 foreign enterprises are allowed to produce films with Chinese enterprises.)

No

It
 is prohibited to invest in the auction companies for cultural relics, stores
 for cultural relics, and state-owned cultural relics museums.

Investment
 in auction companies, cultural relics stores and state-owned cultural relics
 museums engaging in auction of cultural relics shall be prohibited. (Transfer, mortgage and
 renting of immovable cultural relics and cultural relics prohibited to be
 brought out of China to foreigners shall be prohibited. Establishment and
 operation of intangible cultural heritage investigation organizations shall
 be prohibited; intangible cultural heritage surveys and archaeological
 investigation, exploration and excavation in China by overseas organizations
 or individuals shall adopt the form of cooperation with China and be subject
 to special examination and approval and licensing.)

No

It
 is prohibited to invest in performing arts groups.

The
 controlling stake of performing arts groups shall be held by Chinese party.

No

 

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

2019年版全国负面清单相比2018年版作了哪些放宽?

①法律概念与规则解释:外商投资准入负面清单是列明我国对外商投资实行准入特别管理措施的清单,未列入清单的领域按照内外资一致原则管理。2019年版全国负面清单在2018年版基础上继续缩减,条目从48条减少至40条,整体放宽力度显著,主要体现为删除或修改部分行业的外资股比、经营范围及合资合作要求。②案件事实与实务场景引用:根据文章中的纵向比较,2019年版全国清单在采矿领域删除了石油天然气勘探开发限于合资合作、禁止投资钼锡锑萤石勘探开采等限制;在制造业删除宣纸和墨锭生产禁止投资的规定;在交通运输、仓储和邮政业删除国内船舶代理须中方控股的限制;在水、环境和公共设施管理业删除禁止投资国家保护野生动植物资源开发的规定;在文化、体育和娱乐业删除电影院建设和经营须中方控股、演出经纪机构须中方控股的限制。这些删除意味着外资在上述子行业可享受更充分的国民待遇。③实务指引与风险提示:外资投资者应关注负面清单的动态调整,逐项核对拟投资项目是否落入仍保留的限制措施,尤其是稀土、放射性矿物、钨矿勘探开采等敏感领域。同时,即使负面清单删除限制,仍需遵守行业专项法规及安全审查、反垄断等普遍性监管要求,不可简单认为清单未列即完全自由准入。

自贸区负面清单与全国负面清单的主要差异有哪些?

①法律概念与规则解释:自贸区负面清单适用于特定自由贸易试验区,其开放程度通常高于全国清单,体现为对更多行业领域取消或放宽外资准入限制。两个清单均属于《外商投资准入特别管理措施》的组成部分,违反准入措施将导致投资行为无效或面临处罚。②案件事实与实务场景引用:根据文章中的平行比较,自贸区清单与全国清单在多数领域保持一致,但在几个关键子行业存在差异。例如,在农业领域,全国清单限制小麦玉米新品种选育和种子生产须中方控股,而自贸区清单仅要求中方股比不低于34%,且自贸区已取消近海捕捞投资限制;在制造业领域,全国清单对出版物印刷要求中方控股,而自贸区清单已取消该限制;在交通运输领域,公共航空运输企业均要求中方控股且外资比例不超过25%,但自贸区清单附加了更具体的运营规则说明;在放射性矿物冶炼加工和核燃料生产方面,全国清单禁止外资,而自贸区清单未设限制。③实务指引与风险提示:外资企业在设立项目时,应比较全国与自贸区清单的差异,优先考虑可适用更宽松准入的地域,以降低合规成本。需要注意的是,自贸区清单的开放措施仅在区内有效,若后续业务扩展至区外,须重新评估是否满足全国清单要求。此外,自贸区内的放宽不等于豁免行业许可,仍需取得相应行政许可证件。

2019年鼓励外商投资产业目录与负面清单有何衔接关系?

①法律概念与规则解释:鼓励外商投资产业目录与负面清单相辅相成,共同构成外商投资准入政策体系。负面清单列明禁止或限制外资进入的领域,而鼓励目录列明国家鼓励外资投向的产业,列入目录的项目可享受税收、用地、金融等方面的优惠政策。两者均为动态调整的规范性文件,由有关部委联合发布,具有同等法律效力。②案件事实与实务场景引用:根据文章背景信息,2019年版鼓励目录在原有《外商投资产业指导目录(2017年修订)》鼓励类产业目录和《中西部地区外商投资优势产业目录(2017年修订)》基础上整合形成,并且与两个负面清单同步实施。文章指出,相比负面清单的缩减,2019年版鼓励目录在几乎所有行业增加了鼓励条目,体现了扩大鼓励范围、引导外资投向高端制造和现代服务业的政策导向。这意味着即使某行业未列入负面清单,若同时列入鼓励目录,外资企业还可获得额外激励。③实务指引与风险提示:外资投资者应同时审查两个文件,而非仅关注负面清单。若投资项目属于鼓励目录,应主动申请相应优惠待遇,并在可行性研究阶段测算政策红利。需要特别注意,鼓励目录中的条目可能附带适用条件,比如仅限于特定区域或特定规模,必须逐字核对条目描述。同时,负面清单中的限制性措施优先适用,即使项目属于鼓励目录,若违反负面清单仍不允许投资。建议在投资决策前制作准入合规矩阵,结合行业、区域、股权结构对两个文件进行交叉比对。

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

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