Provisions on the Examination and Approval of Investment to Run Enterprises Abroad

Order of the Ministry of Commerce[2004] No. 16

Article 1 With a view to promoting the development of overseas development, the present Provisions are formulated pursuant to the
Administrative License Law of the People's Republic of China, the Decision of the State Council about Setting Administrative Licensing
for the Administrative Examination and Approval Items Necessary to Be Preserved and other pertinent provisions.

Article 2 The state shall help and encourage relatively competitive enterprises with various forms of ownership to invest to run
enterprises abroad.

Article 3 The term of "to invest to run enterprises" refers to the operational acts of the enterprises of China such as establishing
enterprises abroad or acquiring the ownership, managerial right or any other right and interest of the existing enterprises by way of
establishing (solely-funded, equity joint or contractual joint ventures), purchasing, merging, holding shares, injecting fund,
changing stock rights, etc.

Article 4 Domestic enterprises (excluding the financial enterprises) to invest to run enterprises abroad shall be subject to the
examination and approval of the Ministry of Commerce. The Ministry of Commerce shall authorize the commerce administrative departments
of the people''s governments of all provinces, autonomous regions, municipalities directly under the Central Government and cities
under separate state planning (hereinafter referred to as "the provincial commerce administrative departments") to handle the
matters pertaining to the examination and approval of the enterprises other than the enterprises directly under the Central
Government to run enterprises in the countries as listed in the annex.
　　The Ministry of Commerce shall in time adjust the countries as
listed in the Annex in accordance with circumstances and promulgate
them.
Article 5 With respect to the domestic enterprises that intend to
invest to run enterprises abroad, the Ministry of Commerce and the
provincial commerce administrative departments shall examine and
approve them by taking the following aspects into consideration:
(1) The investment environment of different countries (regions);
(2) The status of safety of different countries (regions);
(3) The political and economic relationship between the investment
destination countries (regions) and China;
(4) The policies for guiding investment abroad;
(5) The reasonable distribution in different countries (regions);
(6) The obligations in relevant international treaties; and
(7) Safeguarding the legitimate rights and interests of enterprises.
　　A domestic enterprise itself shall be responsible for whether it
is economically or technically feasible to invest to run an
enterprise abroad.
Article 6 A domestic enterprise shall not be allowed to invest to
run enterprises abroad if:
(1) it impairs the state sovereignty, security and public interests;
(2) it violates any law, regulation or policy of the state;
(3) it is likely to cause the Chinese Government to break any
international treaty she has concluded;
(4) involves any technology or goods prohibited from exporting by
China;
(5) the political situation of the investment destination country is
turbulent and there is serious safety problem;
(6) it is contradictory to the laws, regulations or customs of the
investment destination country or region; or
(7) it is employed for committing transnational crimes.
Article 7 Examination and Approval Procedures
(1) The enterprises directly under the Central Government shall
directly file an application to the Ministry of Commerce, while
other enterprises shall file an application to the provincial
commerce administrative departments.
(2) After the Ministry of Commerce or a provincial commerce
administrative department receives the application materials of an
applicant, with respect to the application materials that are
incomplete or are inconsistent with the statutory form, it shall,
within 5 working days, notify the applicant of the
to-be-supplemented items once and for all; if it fails to do so, it
shall be deemed to have accepted them as of the day when it receives
them. As for the application materials that are complete and
consistent with the statutory forms or that have been supplemented
by the applicant in light of the relevant requirements, it shall
accept them.
(3) A provincial commerce administrative department shall solicit
the opinions of China''s economic and commercial counselor''s office
of the embassy (consulate) to that country (or region). An
enterprise directly under the Central Government shall directly
consult the opinions of China''s economic and commercial
counselor''s office of the embassy (consulate) to that country or
region. The economic and commercial counselor''s office of the
embassy (consulate) to the foreign country (region) shall make a
reply within 5 working days after it receives a letter for
soliciting opinions.
(4) The provincial commerce administrative department shall, in
accordance with the authorized power, decide whether to approve or
not within 15 working days as of the acceptance date; if there is
necessity to report to the Ministry of Commerce for approval, it
shall conduct preliminary examination within 5 working days as of
the acceptance day, and after approving, it shall report to the
Ministry of Commerce.
(5) The Ministry of Commerce shall decide whether to approve or not
within 15 working days as of the acceptance date.
(6) Where the Ministry of Commerce or the provincial commerce
administrative department approves, it shall, in writing, issue an
approval decision; if it doesn''t approve, it shall issue a decision
of disapproval.
Article 8 Application Materials
(1) The application materials to be submitted by an enterprise
cover:
(a) an application (mainly including the name, registered capital,
amount of investment, business scope, business period, form of
organization and organizational structure, etc., of the enterprise
to be launched);
(b) the Articles of Association of the enterprise abroad and
pertinent agreement or contract;
(c) the opinions issued by the foreign exchange administrative
department about the examination over the source of foreign exchange
fund to invest abroad (having to purchase foreign exchange or remit
abroad foreign exchange from China);
(d) the business license of the domestic enterprise and other
relevant qualification certifications as required by the laws and
regulations; and
(e) other documents as required by the laws, regulations, and
decisions of the State Council.
(2) The materials which the provincial commerce administrative
departments shall submit to the Ministry of Commerce cover:
(a) the preliminary examination opinions of this department;
(b) the opinions of the economic and commercial counselor''s office
of the embassy (consulate) of China;
(c) the complete application materials submitted by the enterprise.
Article 9 After the application of an enterprise directly under the
Central Government is approved, the Ministry of Commerce shall issue
an Approval Certificate of the People''s Republic of China to Invest
Abroad (hereinafter referred to as the Approval Certificate) to the
applicant. With respect to an enterprise not directly under the
Central Government, the provincial commerce administrative
department shall issue an Approval Certificate to it on behalf of
the Ministry of Commerce.
　　A domestic enterprise shall go through the matters pertaining to
foreign exchange, bank, customs, foreign affairs, etc. upon the
strength of the Approval Document.
Article 10 A domestic enterprise, which has obtained an approval,
shall submit the statistical materials and accept the joint annual
examination on overseas investment and comprehensive performance
evaluation of overseas investment. With regard to an enterprise
invested abroad upon approval, after it have been registered at the
locality, it shall submit the registration documents to the Ministry
of Commerce for archival purpose and register in the economic and
commercial counselor''s office of the embassy (consulate) of China.
Article 11 Where any of the items listed in Article 8 (1) of the
present Provisions is modified, it shall be subject to the
examination and approval of the original approval organ.
Article 12 The foreign-funded enterprise to invest to run
enterprises abroad shall observe relevant laws and regulations. They
shall be subject to the examination and approval of the provincial
commerce administrative department or superior. Among the aforesaid
foreign-funded enterprises, those established upon approval of the
Ministry of Commerce shall be subject to the examination and
approval of the Ministry of Commerce before they invest to run
enterprises abroad, the others shall be subject to the examination
and approval of the provincial commerce administrative departments
before they invest to run enterprises abroad. The specific
requirements shall be issued by the Ministry of Commerce in a
separate document.
Article 13 The Ministry of Commerce will separately formulate
measures concerning the e-government approaches such as on-line
applications, and the issuance of approval certificates.
Article 14 A provincial commerce administrative department shall not
authorize its subordinate commerce administrative departments to
handle the matters pertaining to the examination and approval of the
investments to run enterprises abroad, nor may it insert any
approval link, application material or approval content.

Article 15 A mainland enterprise to establish an enterprise in Hong
Kong or Macao Special Administrative Region shall be subject to the
examination and approval under relevant provisions.

Article 16 Where any administrative measure promulgated prior to the
present Provisions is inconsistent with the present Provisions, the
latter shall apply.

Article 17 The power to interpret the present Provisions shall
remain with the Ministry of Commerce.

Article 18 The present Provisions shall be implemented as of the
promulgation date.

Annex:
The Names of the Countries in Which the Ministry of Commerce Authorize the Local Provincial Commerce Administrative Departments
To Handle the Matters pertaining to the Examination and Approval of the To-be-run Enterprises Continent/Country
　　Asia (38)
　　India  Kuweit   Malaysia  Maldives Mongolia  Nepal  Pakistan  Sri Lanka  Thailand　Turkey Uzbekistan　Kyrghyz　Armenia　Philippines　Kazakhstan
　　South Korea　Turkmenistan　Vietnam　Laos　Tadzhikistan　the United Arab Emirates　Azerbaijani　Indonesia　the Sultanate of Oman　Israel
　　Saudi Arabia　Lebanon　Cambodia　Bangladesh　Syria　Yemen　Cartel　Bahrain　Iran　Negara Brunei Darussalam　Cyprus　Jordan　Burma
　　Europe (37)
　　Swede　Germany　France　Belgium　Luxemburg　Finland　Malta　Norway　Italy　Demark　Holland　Austria　Britain　Switzerland　Poland　Bulgaria　Hungary
　　Czech　Slovak　Portugal　Spain　Greece　Russia　Ukraine　Moldova　White Russia　Albania　Croatia　Esthonia　Slovenia　Lithuania　Iceland　Rumania
　　Yugoslavia　Macedonia　Bosnia and Herzegovina　Latvia
　　Africa (42)
　　Ghana　Egypt　Morocco　Mauritius　Zimbabwe　Zambia　Algeria
　　Gabon
　　Mali
　　Lybia
　　Angora
　　Cameroon
　　Nigeria
　　Sudan
　　Congo-kin
　　South Africa
　　Cape Verde
　　Ethiopia
　　Congo-Brazzaville
　　Botswana
　　Sierra Leone
　　Mozambique
　　Kenya
　　Djibouti
　　Benin
　　Uganda
　　Mauritania
　　Guinea
　　Guinea-Bissau
　　Madagascar
　　Central Africa
　　Tanzania
　　Togo
　　Lesotho
　　Eritrea
　　Cape Verde
　　Guinea Ecuatorial
　　Seychelles
　　Comorin
　　Liberia
　　Liberia
　　Niger
　　Tunis
　　America (14)
　　Canada
　　Mexico
　　Brazil
　　Bolivia
　　Argentina
　　Uruguay
　　Ecuador
　　Chile
　　Peru
　　Jamaica
　　Cuba
　　Barbados
　　Trinidad and Tobago
　　Guyana
　　Oceania
　　Australia
　　New Zealand
　　Papua New Guinea
　　Fiji