The Contents
I. Summary of the Legal Structure of the Foreign Investment in Ports
II. Summary of the Legal Structure of the Foreign Investment in Shipping Industry
III. Detailed Regulations of Each Field of Shipping Industry
I. Summary of the Legal Structure of the Foreign Investment in Ports
A. correlative laws
1. Catalogue for the Guidance of Foreign Investment
(Oct 31,2007)
Construction and management of public dock facilities of ports and storage facilities relating to transportation services are encouraged; there is no additional stipulation about the investment formality, investment period.
2. Several Opinions about Deepening Reformation, Enlarging Opening and Enhancing Development of China’s Traffic
( Jul, 25,1992)
a. Encourage CJV to construct and manage public dock and berth;
b. Allow JV to manage port handling service;
c. Allow EJV to rent dock and manage loading and discharging service.
d. Allow the foreign investor construct special dock and sea-route owned by cargo owners
e. While the foreign investor developing and managing vast ground, they can construct and manage special dock and port area in the invested domain.
3. Port law of PRC (June 28, 2003)
The state encourages investors at home and abroad to make investment on construction and operation of ports and protect the legitimate rights and interests of investors. This Law is applicable to the undertakings of port planning, construction, maintenance, operation, management and the relevant activities.
4. Administration of Ports Management
( Apr 15, 2004 )
Foreign investors financing port or terminal projects within the territory of the People's Republic of China should abide by the articles such as the ones for market access and so on.
5. Administration of Ports construction
(Apr 24, 2007)
The projects of new-building or rebuilding or enlarging port construction, including the project affiliated to other projects of ports construction, should abide by the articles
6. Administration of dangerous goods within the territory of the ports ( Aug 29, 2003 )
The operation, such as loading, discharging, lightering, storing and container stuffing & unstaffing ect. , should abide by the articles of the regulation.
The construction and operation of the ports which used for the dangerous goods should be accordance with the requirements of the regulation.
7. Provisional Regulations Concerning Preferential Treatment for Port and Terminal Development Projects Financed by Chinese and Foreign Joint Ventures
( Sep, 30, 1985)
In jointly financing port or terminal projects within the territory of the People's Republic of China through the establishment of joint ventures with Chinese partners, foreign corporations, enterprises or individuals involved (hereinafter referred to as foreign partners) shall, besides abiding by the laws and statutes of regulations pertaining thereto, be entitled to preferential treatment in accordance with the provisions of these Regulations, in view of the fact that such projects are usually capital intensive and time consuming in nature and the rate of return is low.
8. Provision of Administration of Foreign Investment in International Maritime Transport
(Feb 25,2004)
With the approval of the Ministry of Communications and the Ministry of Commerce， a foreign investor may invest in and operate international maritime transportation ：
（1） engage in international maritime container freight station and container yard services；
（2） engage in international maritime cargo warehousing services；
9. the Regulations of the People's Republic of China on International Maritime Transportation
(Dec,12.2001)
Upon the approval of the Ministry of Transportation, foreign businessmen may establish EJV or CJV to operate goods storage of international ocean shipping, container station and stacking of international ocean shipping; and may establish WFOE to operate goods storage of international ocean shipping.
10. The Implementing Rules of the Regulations of the People's Republic of china on International Maritime Transportation (Jan,20.2003)
Generally goes with the Regulations of the People's Republic of China on International Maritime Transportation
B. Investment Mode:
Recently there are three leading modes of investing in ports.
• The foreign invest in ports directly, holding the shares and managing the ports;
• Renting docks and berths;
• Purchasing stocks and bonds of port enterprise.
C. 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.
D. Detailed leading Fields of Ports
1. Dock
Investment Form:
• Jointly invest or cooperate in building and running major public docks. Up to now, no solely foreign-funded dock has been established in Shanghai and there is one such dock approved this year in Qingdao;
• Jointly invest, cooperate in building and running docks owned by cargo owners or independently engage in such business.
Investment Term Limit
• The business term limit (including construction period) of a solely foreign-funded public docks shall not exceed 50 years;
• Solely foreign-funded docks owned by cargo owners are allowed to be constructed with a business term limit not exceeding that of the foreign-funded enterprise or that of land use.
2. CY (Container Yard) , CFS (Container freight station) and warehouse
Investment Form:
setting up a foreign-invested enterprise to engage in the business relating to storage and warehousing of international shipments;
setting up a EJV or a CJV to engage in international maritime container freight station and container yard services
Investment Conditions:
If one engages in the business relating to storage and warehousing of international shipments, the following conditions shall be met:
(1) having a fixed place of business;
(2) having the warehouse facilities compatible to the scope of business;
(3) having at least two senior executives with no less than three years' experience in the relevant business; and
(4) other conditions provided for in the laws and regulations.
If one engages in international maritime container freight station and container yard services, the following conditions shall be met:
(1) having a fixed place of business;
(2) having the vehicles, handling facilities, container yards and container checking equipment or facilities compatible to the scope of business;
(3) having at least two senior executives with no less than three years' experience in the relevant business; and
(4) other conditions provided in the laws and regulations.
III. Summary of the Legal Structure of the Foreign Investment in Shipping Industry
• Protocol on the Accession of the P.R China to the WTO Annex 9
(Nov, 11, 2001)
Investment Area :
a. Maritime Transport Services and its Auxiliary Service
b. Internal Waterways Transport
c. Storage and warehousing Service
d. Freight forwarding agency Service
Investment Mode:
Foreigner holding proportion is restrained in some of the above area.
Have time limitation for investors in some area.
2. State Catalogue for the Guidance of Foreign Investment Industries
(Oct 31,2007)
Generally goes with the WTO
3. the Regulations of the People's Republic of china on International Maritime Transportation (Dec,12.2001)
Investment Area:
a. the business operations of international ocean shipping
b. the auxiliary business operations related to international ocean shipping
4. the Implementing Rules of the Regulations of the People's Republic of china on International Maritime Transportation (Jan,20.2003)
Generally goes with the Regulations of the People’s Republic of china on International Maritime Transportation
5. Provision of Administration of Foreign Investment in International Maritime Transport
(Feb 25,2004)
With the approval of the Ministry of Communications and the Ministry of Commerce, a foreign investor may invest in and operate international maritime transportation in the following forms:
(1) to establish an EJV or a CJV to engage in international shipping services, 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) to establish an EJV, a CJV or a WFOE to engage in international maritime cargo warehousing services;
(3) to establish an EJV, a CJV or a WFOE to offer routine services for the vessels owned or operated by the investor.
6. Closer Economic Partnership Arrangement Annex 4 on June 29, 2003
Special Treatment towards investors from Hong Kong and Macau
IV. Detailed Regulations of Each Field
A. international shipping business
• Protocol on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov,11.2001)
• the Regulations of the People's Republic of china on International Maritime Transportation (Dec,12.2001)
• The Implementing Rules of the Regulations of the People's Republic of china on International Maritime Transportation (Jan,20.2003)
Investment Area:
(a) Liner shipping (including passenger transportation)
Bulk, tramp and other international shipping (including passenger transportation)
(b) Investment Form:
EJV or CJV
Foreign investment shall not exceed 49 per cent of the total registered capital of the joint venture
(c) Investment Conditions:
i. Shall have the vessels suitable for the management of International maritime transport, among which shall be under the national flag of the People's Republic of China;
ii. Have Bill of Lading, tickets or multimodal transport documents;
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.
B. international shipping agency services
Protocol on the Accession of the People’s Republic of China to the World Trade Organization Annex 9 (Nov,11.2001)
Only in forms of joint ventures, with foreign equity share no more than 49 percent.
the Regulations of the People's Republic of china on International Maritime Transportation (Dec,12.2001)
Applicants for international shipping agency service shall meet the following requirements:
(1) having at the senior managerial level at least 2 staff members with not less than three years’ experience in the international shipping service; and
(2) having fixed place of business with appropriate business facilities.
C. ship management service
• the Regulations of the People's Republic of China on International Maritime Transportation (Dec,12.2001)
• the Implementing Rules of the Regulations of the People's Republic of china on International Maritime Transportation (Jan,20.2003)
• Provision of Administration of Foreign Investment in International Maritime Transport (Feb 25,2004)
Investment Form:
EJV or CJV
Foreign investment shall not exceed 49 per cent of the total registered capital of the joint venture
Investment Conditions:
1) At least 2 of the senior managerial personnel having no less than 3 years experience of international ship management business;
2) Having the personnel holding the post certificates of shipmaster and chief engineer in accordance with the relevant types of the managed ships and the shipping areas;
3) Having the equipment and facilities accommodated to the international ship management business.
D. Shipping Companies
the Implementing Rules of the Regulations of the People's Republic of china on International Maritime Transportation (Jan,20.2003)
Shipping Companies shall issue special-purpose invoices to the payers when they collect freight and other related charges for themselves
the Regulations of the People's Republic of China on International Maritime Transportation (Dec,12.2001)
Provision of Administration of Foreign Investment in International Maritime Transport (Feb 25,2004)
• Foreign investors may establish EJV, CJV or WFOE to provide the daily services such as contracting goods for shipping, acting as an agent to issue or endorse bills of lading, settling freight charges, signing service contracts, etc. for the ships they own or operate
Administration of the Examination and Approval of Wholly Foreign-owned Shipping Companies Tentative Procedures (Jan,28.2000)
The establishment, by foreign shipping merchants, of wholly foreign-funded shipping companies in China shall subject to the examination and approval in strict accordance with the marine shipping agreements entered into between the Chinese Government and the governments of the countries where the foreign shipping merchants are located as well as the relevant legal documents.
Investment Conditions:
An applicant for the establishment of a wholly owned shipping company must meet the following conditions:
1. have at least 15 years experience in shipping;
2. have maintained a resident representative office approved by the Ministry of Communications in the port city where it proposes to establish its wholly owned shipping company for at least three years;
3. its scheduled vessels berth in the port city where it proposes to establish its wholly owned shipping company at least once per month (if it operates a shipping route through such cooperative forms as joint dispatch of vessels, mutual exchange of cargo space, joint operation, etc. and, upon approval, has obtained the right to operate a shipping route, it shall be deemed to satisfy this condition);
Foreign Shipping Companies which ship by unscheduled vessels must have a stable cargo source in China; and
4. it has not violated Chinese laws, administrative regulations or rules during the course of its business activities in China for a consecutive period of two years.
NOTE: At least 85% of the staff and workers of a wholly owned shipping company shall be Chinese employees.
Investment Form:
Contractual joint venture (CJV);
Equity joint venture (EJV);
WOFE
E. NVOCC (non-vessel-operating common carrier)
Regulations of the People’s Republic of China on International Ocean Shipping and its Implementing Rules
Those operating the non-vessel shipping business shall make the registration of bill of lading with the Ministry of Transportation, and shall pay the security deposit.
Investment Form:
Contractual joint venture;
Equity joint venture;
WOFE
• Note: a foreign NVOCC has acquired the qualification for the non-vessel-operating services in accordance with foreign laws and has obtained a legal financial liability guaranty can apply to engage in the non-vessel-operating services.
F. Freight forwarding Agency Services
Catalogue for the Guidance of Foreign Investment
(Oct 31,2007)
Administration of Foreign Investment in International Freight Forwarding Agency Services (Dec 1, 2005)
Investment Area :
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 check, 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
b. Investment Form:
Contractual joint venture;
Equity joint venture;
WOFE
c. 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.
Closer Economic Partnership Arrangement Annex 4
(June 29, 2003)
Hong Kong 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 freight forwards or International express delivery: RMB 2 million.
G. Internal Waterways Transport
Protocol 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 (Oct 31, 2007)
Water Transportation Companies are listed in restricted items. Foreign investment shall not exceed 49 per cent of the total registered capital of the joint venture.
Regulations of the People’s Republic of China for the Administration of Water Transport (Dec 3, 1997)
Before permission is obtained from the Ministry of Communications of the People's Republic of China, foreign-capital enterprises, Chinese-foreign equity joint ventures and Chinese-foreign contractual joint ventures shall not engage in the operation and management of water transport in the coastal waters, rivers, lakes and other navigable waters in the People's Republic of China.
Implementing Rules of Regulations of the People’s Republic of China for the Administration of Water Transport
(Mar 6, 1998)
Generally goes with the Regulations of the People’s Republic of China for the Administration of Water Transport
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
外资投资中国港口有哪些模式？
根据2007年前后的法律框架，外资投资中国港口主要存在三种模式。法律概念与规则解释方面，港口属于基础设施领域，中国法律鼓励国内外投资者参与港口建设与经营，并保护投资者合法权益。外商投资港口并非单一路径，而是根据项目性质、投资标的和经营内容，可以选择直接持股经营、租赁码头泊位或购买港口企业股票债券等不同方式。直接持股模式下，外资可通过合资、合作或独资企业形式参与公共码头或货主码头的建设运营；租赁模式则适用于已有码头设施的改造升级或特定泊位经营；证券投资模式则为外资间接参与港口经营提供了渠道。案件事实与实务场景引用方面，文章指出当时上海尚无外商独资公共码头获批，而青岛当年已批准一家外商独资公共码头，说明独资模式在政策上已获允许但审批趋于审慎。货主码头领域，外资可合资、合作建设，也可独资经营，其经营期限不超过外资企业存续期或土地使用权期限。公共码头的外商独资经营期限一般不超过五十年，且包含建设期。实务指引与风险提示方面，外资在选择投资模式时，需首先确定码头性质是公用还是货主专用，因为两者在经营期限、审批要求上存在差异。租赁模式应关注码头设施权属和租期稳定性，避免因港口规划调整导致租赁关系中断。证券投资模式需注意港口企业国有股权转让的特别监管要求。此外，港口经营涉及岸线资源利用，属于国家严格管控的领域，外资应事先与港口行政管理部门沟通项目可行性，并完成安全、环保、海事等专项审批。
外资从事国际海运辅助业务有何条件？
国际海运辅助业务包括集装箱货运站、集装箱堆场、国际海运货物仓储等，外资进入该领域需满足法定条件。法律概念与规则解释方面，国际海运辅助业务属于国际海运的延伸服务，中国法律将其纳入外商投资准入管理，要求外资企业必须经过交通运输主管部门和商务主管部门的批准。业务类型不同，企业形式要求也不同。从事国际海运货物仓储业务，外资可以设立外商独资企业；而从事国际海运集装箱货运站和堆场服务，则只能设立中外合资或合作企业，不能独资。这一差异源于WTO承诺中对不同辅助业务的开放程度不同。案件事实与实务场景引用方面，文章列出两类业务的具体条件。从事国际海运货物仓储的企业，必须有固定经营场所、与经营范围匹配的仓库设施、至少两名具有三年以上相关业务经验的高级管理人员，并符合其他法定条件。从事集装箱货运站和堆场服务的企业，除固定场所外，还需配备车辆、装卸设施、集装箱堆场和检查设备，同样要求至少两名资深高管。这些条件旨在确保外资企业具备实际运营能力和专业管理团队，防止空壳公司扰乱市场秩序。实务指引与风险提示方面，外资企业在筹备阶段应重点准备场所证明、设施清单、高管履历等材料，注意高管经验需提供劳动合同、社保记录或离职证明等客观佐证。实践中常见争议在于对《与经营范围相匹配》的认定，监管机构可能根据业务量、场地面积、设备类型进行实质审查。另外，合资或合作企业中，外方需提前约定股比、决策机制和利润分配，尤其是中方控股要求下的控制权安排。企业成立后，变更经营范围、增设分支机构的，仍需重新履行审批程序。一旦获批，企业应当持续维持各项条件，若设施或高管发生变化，应及时向监管部门报告，避免因条件不满足而被吊销经营许可。
外资参与港口码头建设有何期限规定？
港口码头建设的外资参与期限因码头性质和投资形式不同而有区别。法律概念与规则解释方面，码头建设属于固定资产投资，投资回收期长，回报率较低，因此法律对外资参与给予一定优惠政策，但对经营期限加以限定。公共码头是面向社会提供装卸、仓储等服务的港口基础设施，货主码头则是为特定货主自有货物服务的专用码头。法律根据两类码头的社会属性差异，规定了不同的最长经营期限。案件事实与实务场景引用方面，文章明确指出，外商独资建设的公共码头，其经营期限包括建设期在内不得超过五十年。而外商独资建设的货主码头，经营期限不得超过外商投资企业的经营期限或者土地使用权期限。这一区别意味着货主码头的期限取决于企业章程或土地出让合同确定的时间，通常与项目用途挂钩，但法律设定了上限约束。实务中，公共码头五十年期限是常见的外资项目上限，企业在合同和章程中应明确经营期限起算点，一般从营业执照签发或码头实际投入运营之日计算，但建设期计入总期限，因此前期报批、征地、施工等环节耗时越长，实际运营期越短。风险提示方面，外资企业需注意期限届满后的处理方式，包括是否申请续期、资产清算或由政府收回等。法律未强制规定续期程序，企业应在期限届满前提前与地方港口管理部门沟通。另外，合资合作模式下，期限并不自动适用独资规则，而是依合资合同约定，但不得超过法定上限。外资企业还应关注码头所在港口总体规划调整可能引发的拆迁或功能变更，这些因素可能影响实际经营期。建议在投资协议中设置不可抗力或政策变更条款，合理分配因规划调整导致的损失，并在项目前期做好岸线审批、环评、海域使用等全套手续，避免因个别审批延误压缩有效经营期。
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
