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Provisions on
Administration of Foreign Investment in
International Maritime Transportation
(Promulgated by Decree No. 1 of the Ministry of Communications and the
Ministry of Commerce on March 2nd, 2004, and effective as of June 1st, 2004)
Article 1 These Provisions are formulated in
accordance with the Regulations of the People¡¯s Republic of China on
International Maritime Transportation (hereinafter
referred to as the Maritime Transportation Regulations) and the relevant
laws and administrative regulations of the People¡¯s Republic of China on
foreign investment, for the purposes of regulating the establishment of
foreign-funded enterprises by foreign investors to engage in international
maritime transportation business and auxiliary business relating thereto and
safeguarding the lawful rights and interests of Chinese and foreign
investors.
Article 2 These Provisions are applicable to the investment in and operation
of international maritime transportation business and auxiliary businesses
relating thereto (hereinafter referred to as international maritime
transportation) by foreign investors within the territory of China.
Article 3 The Ministry of Communications and the Ministry of Commerce of the
People¡¯s Republic of China as well as their authorized agencies are
responsible for the approval and administration of the establishment of
foreign-funded enterprises within the territory of the People¡¯s Republic of
China by foreign investors to engage in international maritime
transportation.
Article 4 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 a Chinese-foreign equity joint venture or a Chinese-foreign
contractual joint venture 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 a Chinese-foreign equity joint venture, a Chinese-foreign
contractual joint venture or a wholly foreign-owned enterprise to engage in
international
maritime cargo warehousing services;
(3) to establish a Chinese-foreign equity joint venture,
a Chinese-foreign contractual joint venture or a wholly
foreign-owned enterprise to offer routine services for
the vessels owned or operated by the investor.
Article 5 A foreign-funded international shipping
enterprise to be established shall meet the following
conditions:
(1) having vessels suitable for employment in
international maritime transportation, among which there
must be vessels of Chinese nationality;
(2) vessels under employment shall be in compliance with
the technical standards for maritime traffic safety as
set forth by the State;
(3) having bills of lading, passenger tickets or
multimodal transportation documents;
(4) having senior executives with the professional
qualifications as set forth by the Ministry of
Communications;
(5) in case of establishing a Chinese-foreign equity
joint venture or a Chinese-foreign contractual joint
venture, the proportion of investment made by foreign
investors shall not exceed 49%;
(6) the chairperson of the board of directors and the
general manager shall be appointed by the Chinese side
after consultation between the both sides;
(7) other conditions specified by laws or administrative
regulations.
Article 6 Where anyone is to establish a foreign-funded
enterprise to engage in international shipping services,
it shall firstly make an application to the Ministry of
Communications in accordance with the provisions of the
Maritime Transportation Regulations and the Implementing
Rules of the Regulations of the People¡¯s Republic of
China on International Maritime Transportation
(hereinafter referred to as the Implementing Rules of
the Maritime Transportation Regulations); if such
application is approved by the Ministry of
Communications, the applicant shall, in accordance with
the laws and administrative regulations on foreign
investment of the State and on the strength of the
approval document issued by the Ministry of
Communications, go through the approval procedures for
establishing a foreign-funded enterprise with the
Ministry of Commerce by submitting the documents
specified in Article 15 of these Provisions and obtain
the Approval Certificate for Foreign-funded Enterprise.
The applicant shall, by presenting the approval document issued by the
Ministry of Communications, the Approval Certificate for Foreign-funded
Enterprise issued by the Ministry of Commerce and other relevant documents,
go through the industrial and commercial registration formalities with the
administrative department for
industry and commerce according to law and obtain the business license.
After the establishment of a foreign-funded international shipping
enterprise, the applicant shall, by presenting the business license issued
by the
administrative department for industry and commerce, apply to the Ministry
of Communications for obtaining the Permit for Operation of International
Shipping
Services. Only those that have obtained such Permit may engage international
shipping services.
Aticle 7 A foreign-funded international shipping agency enterprise to be
established shall meet the following
conditions:
(1) having at least two senior executives with no less
than three years¡¯ experience in international maritime
transportation business operations. The term ¡°senior
executives¡± refers to Chinese citizens who have
secondary or higher technical or academic titles and
serve as department managers or above in enterprises
engaging in international maritime transportation
business or the auxiliary business relating thereto;
(2) having a fixed place of business and necessary
business facilities, including the ability to have
electronic data interchange (EDI) with ports, the
Customs and other departments;
(3) in case of establishing a Chinese-foreign equity
joint venture or a Chinese-foreign contractual joint
venture, the proportion of investment made by foreign
investors shall not exceed 49%;
(4) other conditions specified by laws or administrative
regulations.
Article 8 Where anyone is to establish a foreign-funded
enterprise to engage in international shipping agency
services, it shall firstly make an application to the
Ministry of Communications in accordance with the
provisions of the Maritime Transportation Regulations
and the Implementing Rules of the Maritime
Transportation Regulations; if such application is
approved by the Ministry of Communications, the
applicant shall, in accordance with the laws and
administrative regulations on foreign investment of the
State and on the strength of the approval document
issued by the Ministry of Communications, go through the
approval procedures for establishing a foreign-funded
enterprise with the Ministry of Commerce by submitting
the documents specified in Article 15 of these
Provisions and obtain the Approval Certificate for
Foreign-funded Enterprise.
The applicant shall, by presenting the approval document
issued by the Ministry of Communications, the Approval
Certificate for Foreign-funded Enterprise issued by the
Ministry of Commerce and other relevant documents, go
through the industrial and commercial registration
formalities with the administrative department for
industry and commerce according to law and obtain the
business license.
After the establishment of a foreign-funded
international shipping agency enterprise, the applicant
shall, by presenting the business license issued by the
administrative department for industry and commerce,
apply to the Ministry of Communications for obtaining
the Registration for Operation of International Shipping
Agency Services. Only those that have obtained such
Registration may engage international shipping agency
services.
Article 9 A foreign-funded international ship management
enterprise to be established shall meet the following
conditions:
(1) having at least two senior executives with no less
than three years¡¯ experience in international maritime
transportation business operations;
(2) having staff members in possession of master¡¯s or
chief engineer¡¯s documents of competence that are
commensurate with the types of vessels under their
management and the navigation zones;
(3) having the equipment or facilities commensurate with
the international ship management services.
Article 10 Where anyone is to establish a foreign-funded
enterprise to engage in international ship management
services, it shall firstly make an application to the
Ministry of Communications in accordance with the
provisions of the Maritime Transportation Regulations
and the Implementing Rules of the Maritime
Transportation Regulations; if such application is
approved by the Ministry of Communications, the
applicant shall, in accordance with the laws and
administrative regulations on foreign investment of the
State and on the strength of the approval document
issued by the Ministry of Communications, go through the
approval procedures for obtaining the Approval
Certificate for Foreign-funded Enterprise with the
competent commerce administration department of the
people¡¯s government of the province where such
enterprise is to be located by submitting the documents
specified in Article 15 of these Provisions.
After the establishment of a foreign-funded
international ship management enterprise, the applicant
shall, by presenting the business license issued by the
administrative department for industry and commerce,
apply to the competent communications administration
department of the people¡¯s government of the province
where such enterprise is located for obtaining the
Registration for Operation of Auxiliary Businesses
Relating to International Maritime Transportation. Only
those that have obtained such Registration may engage in
international ship management services.
Article 11 Where anyone is to establish a foreign-funded
enterprise to engage in international maritime container
freight station and container yard services or
international maritime cargo warehousing services, it
shall firstly make an application to the Ministry of
Communications in accordance with the provisions of the
Maritime Transportation Regulations and the Implementing
Rules of the Maritime Transportation Regulations; if
such application is approved by the Ministry of
Communications, the applicant shall, in accordance with
the laws and administrative regulations on foreign
investment of the State and on the strength of the
approval document issued by the Ministry of
Communications, go through the approval procedures for
obtaining the Approval Certificate for Foreign-funded
Enterprise with the competent commerce administration
department of the people¡¯s government of the province
where such enterprise is to be located by submitting the
documents specified in Article 15 of these Provisions.
After the establishment of a foreign-funded enterprise
engaging in international maritime container freight
station and container yard services or international
maritime cargo warehousing services, the applicant
shall, by presenting the business license issued by the
administrative department for industry and commerce,
apply to the competent communications administration
department of the people¡¯s government of the province
where such enterprise is located for obtaining the
Registration for Operation of Auxiliary Businesses
Relating to International Maritime Transportation. Only
those that have obtained such Registration may engage in
the relevant services.
The establishment of a foreign-funded enterprise
engaging in loading and unloading of international
shipments shall be governed by the relevant provisions
of the State.
Article 12 Where an established foreign-funded
enterprise applies to add international maritime
transportation business or the auxiliary business
relating thereto to its business scope, it shall go
through the corresponding formalities in accordance with
the procedures for establishing a foreign-funded
enterprise engaging in specific international maritime
transportation businesses set forth in these Provisions.
Where an established foreign-funded enterprise engaging
in international maritime transportation is to establish
branches, it shall go through the corresponding
formalities with the Ministry of Communications and the
Ministry of Commerce or their authorized agencies in
accordance with the laws and administrative regulations
on foreign investment of the State, the Maritime
Transportation Regulations and the Implementing Rules of
the Maritime Transportation Regulations.
Where an established foreign-funded enterprise engaging
in international maritime transportation is to modify
the essential contents such as investment contribution,
structure of the shares or scope of business of its
contact of joint venture or articles of association, it
shall go through the corresponding formalities with the
Ministry of Commerce or its authorized agencies in
accordance with the laws and administrative regulations
on foreign investment of the State. Any modification to
the matters specified in Article 21 of the Implementing
Rules of the Maritime Transportation Regulations shall
be filed with the Ministry of Communications for the
record.
Article 13 A foreign company engaging in shipping may
establish a Chinese-foreign equity joint venture,
Chinese-foreign contractual joint venture or wholly
foreign-owned enterprise to offer such routine services
as canvassing of cargoes, issuance of bills of lading,
settlement of freight and signing of service contracts
for the vessels owned or operated by investors. The
procedures for establishment application of such an
enterprise shall be governed by the relevant provisions
jointly issued by the Ministry of Communications and the
Ministry of Commerce on approval of establishment of
wholly foreign-owned shipping companies.
Article 14 Where a foreign-funded enterprise within the
territory of China is to engage in non-vessel-operating
services, it shall, in accordance with the provisions of
the Maritime Transportation Regulations and the
Implementing Rules of the Maritime Transportation
Regulations, make an application to the Ministry of
Communications for registration and obtaining the
Registration of Non-vessel-operating Services
Qualification, and go through the approval formalities
with the Ministry of Commerce in accordance with the
relevant laws and administrative regulations on foreign
investment of the State.
Article 15 Where an applicant makes an application to
the Ministry of Communications, it shall submit the
documents specified in the Maritime Transportation
Regulations and the Implementing Rules of the Maritime
Transportation Regulations. Where an applicant makes an
application to the Ministry of Commerce or its
authorized agencies, he shall submit the following
documents:
(1) the letter of application;
(2) the feasibility study report;
(3) the contract of the joint venture and the articles
of association of the company (in case of a wholly
foreign-owned company, the articles of association of
the company only);
(4) the registration certificate and credit-standing
certificate of investors;
(5) the identity certification of the chairperson of the
board of directors and the general manager of the
enterprise to be established;
(6) other documents required by laws or administrative regulations.
Article 16 These Provisions are mutatis mutandis applicable to the
establishment of enterprises engaging in international maritime
transportation and the
auxiliary services relating thereto in other provinces, autonomous regions
or municipalities directly under the Central Government by the investors
form Hong Kong Special Administrative Region, Macao Special Administrative
Region or Taiwan region.
Article 17 In accordance with the relevant provisions of the Mainland and
Hong Kong Closer Economic Partnership Arrangement, the Mainland and Macao
Closer Economic
Partnership Arrangement and their Annexes, from January 1st, 2004, service
suppliers from Hong Kong or Macao may established a wholly Hong Kong or
Macao-owned enterprise in Chinese mainland to engage in international ship
management services, international maritime cargo warehousing, international
maritime container freight station and container yard services, and
non-vessel-operating services; they may also establish a wholly Hong Kong or
Macao-owned shipping company in Chinese mainland to offer such routine
services as canvassing of cargoes, issuance of bills of lading, settlement
of freight and signing of service contracts for their owned or operated
vessels.
Article 18 The Ministry of Communications and the Ministry of Commerce are
responsible for the interpretation of these Provisions.
Article 19 These Provisions shall take effect as of June 1st, 2004. |
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