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.
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
外商投资中国海运及辅助服务领域可采用哪些投资形式？
首先，从法律概念与规则层面看，国际海运及辅助服务领域依据中国加入世贸组织时的承诺，对外资开放范围包括国际海上货物运输、旅客运输、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。此类业务原则上仅允许设立中外合资经营企业或中外合作经营企业，且外资在合资企业注册资本中的比例不得超过49%，中方需保持控制地位。而国际海运货物仓储服务以及船舶日常服务则允许设立外商独资企业或合资企业，开放程度相对更高。其次，结合本文所述的实务场景，演讲以2004年为背景，明确指出外国投资者若参与国际海运运输、船舶代理等核心业务，只能采取合资形式，且董事长与总经理应由中方委派。这一要求体现了当时中国对外资进入敏感航运基础设施领域的审慎态度。对于仓储和船舶服务，则无需中方控股，外资可独立经营，这为跨国物流企业在中国市场布局提供了更灵活的空间。最后，从实务指引与风险提示角度，外资企业在决定投资形式时，应首先界定拟经营业务属于限制外资持股比例的类别，还是允许独资的类别。若属于合资类业务，需提前物色具备资质的中方合作方，并注意合资协议中关于治理结构、利润分配及退出机制的安排。同时，要关注企业经营期限不得超过二十年的规定，在合同期限届满前筹划续期或重组事宜。此外，由于相关规则可能随政策调整，投资者应持续关注最新产业目录与部门规章，避免因法律变化导致投资架构不合规。
外商投资国际海运服务企业的设立审批流程是怎样的？
首先，从法律规则层面看，设立外商投资国际海运服务企业需遵循双重主管机关审批原则。根据本文所述，交通主管部门负责对拟设企业的经营资质与业务能力进行审查，商务主管部门负责对外商投资行为本身进行核准。整个流程包含多阶段许可，任何环节缺失均可能导致企业无法合法运营。其次，结合文章陈述的具体程序，设立申请首先应向交通运输管理部门提交申请，由其审核投资者是否拥有适合国际海运的船舶、是否具备提单或客票等单证能力、高管人员是否持有合格资格证书等条件。获得交通部门的批准文件后，再凭该文件向商务主管部门提出设立申请。商务部门核准后，投资者需到市场监督管理机关办理工商登记，领取营业执照。最后，还需向交通部门申请取得国际海运运输及船舶代理业务的批准证书，方可正式开展经营。这一流程体现了行政审查与商事登记相衔接的特点。最后，从实务操作角度，外资企业应特别注意申请材料的先后顺序与逻辑关系，避免因前置文件缺失而被退回。在准备阶段，应确保中方合作方具备指定董事长和总经理的资格，并核实高级管理人员中至少有两名具有三年以上国际海运从业经验。同时，企业需配备固定经营场所和能与港航、海关等部门进行电子数据交换的设施。常见争议焦点包括对高级管理人员资历的认定标准以及对外资股权比例的穿透计算，建议在报批前内部预审并咨询专业机构。此外，审批周期可能较长，企业应合理安排资金与业务启动时间，防范因审批延误造成的商业损失。
港澳投资者在物流航运领域享受哪些特殊待遇？
首先，从法律概念与规则层面看，根据中国与香港、澳门分别签署的《关于建立更紧密经贸关系的安排》，即通常所说的CEPA，港澳投资者在内地投资物流航运业时，可以获得优于其他外资的待遇。核心规则是允许港澳投资者在某些原本限制合资的领域设立外商独资企业，无需遵守外资持股比例不超过49%的一般限制。这一安排体现了区域经贸合作中的特殊优惠原则。其次，结合文章所述的实务内容，在2004年的安排框架下，港澳投资者可以独资经营国际船舶管理、国际海运货物仓储、国际海运集装箱站和堆场等业务，甚至可以设立独资的航运公司。这与其他外资仅能通过合资形式进入相应领域形成鲜明对比。文中特别指出，该特殊待遇源自CEPA附件四，适用于自香港和澳门来内地的投资者，旨在促进内地与港澳之间的经济融合。在当时的试点城市和范围内，港澳资金进入物流航运市场的门槛显著降低。最后，从实务指引与风险提示角度，港澳投资者若希望享受上述独资待遇，需要确保自身符合CEPA对投资者来源地和实质性经营的要求，例如企业应在香港或澳门注册并实际运营，避免利用壳公司套取优惠。在实际操作中，仍须按照正常的审批程序向交通主管部门和商务主管部门申请，但股东结构与股权比例可以完全由港澳投资者控制。建议在设立企业前，准备充分的证明材料以证明港澳投资者身份，并关注后续政策更新，因为CEPA协议内容不断扩展，不同时期的开放清单可能有所调整。同时，独资经营虽然提高了控制力，但也意味着投资者需独立承担经营风险，应在市场调研与合规体系建设方面投入更多资源，以确保满足内地法律对安全生产、环境保护以及航运市场秩序的各项要求。
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
