Abstract
Foreign investment in China is, at once, an issue of great age and great youth. Against the historical backdrop of Western exploitation during the second half of the nineteenth and first half of the twentieth centuries, and policies alternating between shutting out or accepting foreign investment, China’s leaders have now determined that the “awakening Giant” can withstand and prosper with the help of foreign investment while relying on China’s own efforts. But will China treat her business guests with traditional hospitality or so-called xenophobia after they have entered the door? This chapter examines China’s developing legal framework for absorbing foreign investment and comments on the emerging legal threshold at China’s door.
This article was first published in the New York Law School Journal of International and Comparative Law (USA), Vol. 6, No. 1, 1984. The citations and commentary on legal provisions in this article were based upon the related laws and regulations effective during that time. It is hereby suggested to check and compare them with the further development of these legal provisions since 1984, so as to better understand their historical, gradual maturity and obtain the most recent information.
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Notes
- 1.
See H. Kapur [1].
- 2.
Constitution of PRC, Art. 18, Renmin Ribao (People’s Daily), 5 Dec. 1982, at 1, reprinted in Beijing Rev. No. 52, at 10 (adopted by the Fifth Session of the Fifth National People’s Congress on 4 Dec. 1982).
- 3.
Id.
- 4.
Constitution of 1954, reprinted in 3 Constitutions of Nations 261 (3rd ed., 1965, adopted by the First Session of the First National People’s Congress on 20 Sept. 1954); Constitution of 1975, reprinted in Wang, Selected Legal Documents Of The People’s Republic Of China (1976, adopted by the First Session of the Fourth National People’s Congress on 17 Jan. 1975); Constitution of 1978, reprinted in Beijing Rev. No. 11, at 5 (adopted by the Fifth National People’s Congress on 5 Mar. 1978, amended 1 July 1979, promulgated on 1 Jan. 1980).
- 5.
See Answers, infra note 6, p. 1.
- 6.
See Questions and Answers Concerning Foreign Investment in China, China Economic News (Hong Kong), Supp. No. 3, 12 May 1982 [hereinafter cited as Answers].
- 7.
Wei Yuming [2] [hereinafter cited as Wei’s Speech].
- 8.
In the same speech, Wei said: “Now please allow one to take this opportunity to make an introduction and some explanations on our government’s policy for absorbing direct foreign investment.” Id.
- 9.
China has adopted a variety of forms to attract foreign capital. At present there are roughly three ways of utilizing foreign investment in China: (1) the absorption of direct investment from foreign countries, including joint ventures, cooperation enterprises, joint exploration and development, and compensation trade; (2) endeavoring to obtain medium and long-term loans at low to medium interest rates from various exploration and development foundations and from foreign governments and international financial organizations; and (3) ordinary commercial loans. For the present and in the near future, absorbing direct investment should be the most important form.
- 10.
See, e.g., Answers, supra note 6, at 3, for a list of regulations and promulgations implemented to effectuate the Law of the PRC on Chinese-Foreign Joint Ventures. See infra note 13.
- 11.
See Answers, supra note 6, p. 2.
- 12.
In a recent interview with a Hong Kong correspondent, Mr. Cao Jiarui, the deputy director of the Ministry of FERT’s technical import and export bureau, stated that the Chinese Government is now giving priority attention to the technical transformation of the country’s existing enterprises and that the nation’s economic growth will depend upon this transformation to a large extent. Chinese industrial establishments are interested in importing advanced and small projects which call for a small investment but produce swift results. One of the most important changes in technological importation, therefore, has been the great increase in the number of items serving the needs of technical transformation in existing enterprises. Its proportion under state planning accounted for 0.7 % of the total value of technological and equipment imports in 1979. It rose to 36.7 % in 1981. See Tech Import Chief on Changes in China’s Technology Import Policy, China Economic News (Hong Kong), No. 44, 15 Nov. 1982, p. 4.
- 13.
The Law of the PRC on Chinese-Foreign Joint Ventures, art.13, Renmin Ribao, 9 July 1979, reprinted in 1 China’s Foreign Economic Legislation 1 (1982, adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979, promulgated on 8 July 1979, hereinafter cited as Joint Venture Law).
- 14.
See Jingji Ribao [3].
- 15.
Joint Venture Law, supra note 13.
- 16.
Id. art. 4.
- 17.
See Answers, supra note 6, pp. 3, 12.
- 18.
Joint Venture Law, supra note 13, art. 4, 3.
- 19.
Id. art. 5, 1–2.
- 20.
See Answers, supra note 6, pp. 3, 12.
- 21.
Joint Venture Law, supra note 13, art. 5, 3.
- 22.
See Answers, Supra note 6, at 7, 14.The foreign investor cannot purchase and own land in the PRC because the PRC is a socialist state. According to the constitution, all land is owned by the state or by collectives. Constitution, art. 10 (PRC).
- 23.
See Some Aspects of China’s Work in Economy, Trade and Law at 6, Remarks of Ren JianXin, director of the Legal Affairs Department, China Council for the Promotion of International Trade, before the Conference on Selling Technology to China, National Council for the United States–China Trade, in Washington, D.C. (5 Dec. 979, hereinafter cited as Ren JianXin’s Remarks).
- 24.
See supra note 22.
- 25.
Joint Venture Law, supra note 13, art. 5, 4.
- 26.
Id. art. 1.
- 27.
The exercise of the approval authority of the State Foreign Investment Commission has been transferred to a new ministry. See Decision by the Standing Committee of the National People’s Congress on the Exercise of the Approval Authority of the Former State Foreign Investment Commission by the Ministry of Foreign Economic Relations and Trade, Standing Committee of the Fifth National People’s Congress, 26th meeting (5 Mar. 1983). At its 22d meeting, the Standing Committee decided that the State Foreign Investment Commission should be merged into the Ministry of Foreign Economic Relations and Trade (FERT). See Resolution on Restructuring the State Council, Standing Committee of the Fifth National People’s Congress, 22d meeting. Thus, the approval authority formerly exercised by the State Foreign Investment Commission in accordance with provisions of the Law of the PRC on Joint Ventures Using Chinese and Foreign Investment and other relevant laws and regulations concerning foreigners would henceforth be exercised by the Ministry of FERT. See Renmin Ribao, 6 Mar. 1983, p. 4.
FERT, however, retained the power to delegate to the people’s governments of provinces, municipalities, and autonomous regions or other ministries, commissions, and administrations under the State Council, the authority to examine and approve projects that conform to the following two conditions:
1. The projects require no additional state allocations of raw and other materials; do not affect the national balance on matters of fuel, power, and transportation; and produce no products that take up the state export quotas.
2. The total investment of a project does not exceed US $5 million in Liaoning Province and the municipalities of Beijing, Shanghai, and Tianjin and US $3 million in other provinces, autonomous regions, and under other ministries, commissions, and administrations under the State Council, with the exception of Guangdong and Fujian Provinces where no limit is imposed on such investment and the Chinese investment is procured by drawing on the funds (including foreign exchange) owned by local governments, departments under the State Council or the enterprise involved in the project. Id.
- 28.
Joint Venture Law, supra note 13, art. 3.
- 29.
Procedures of the PRC for the Registration and Administration of Chinese-Foreign Joint Ventures, art. 5, Renmin Ribao, 27 July 1980, reprinted in 1 China’s Foreign Economic Legislation 13 (1982, promulgated by the State Council of the PRC on 26 July 1980, hereinafter cited as Regulations on JV Registration).
- 30.
Joint Venture Law, supra note 13, art. 2, 1.
- 31.
Id.2.
- 32.
See Answers, supra note 6, at 5, 13. For example, article 10 of the regulations provides:
The General Administration for Industry and Commerce of the PRC and the Administrative Bureaus for Industry and Commerce in the provinces, municipalities, and autonomous regions are authorized to supervise and inspect the joint ventures using Chinese and foreign investment in the areas they govern. In cases of violations of the present regulations, the violator shall be given a warning or be fined in accordance with the varying degrees of seriousness in each specific case.
Regulations on JV Registration, supra note 29, art. 10.
Article 13 of the Regulations of the PRC on Labor Management in Chinese-Foreign Joint Ventures provides: “Joint ventures must implement the relevant rules and regulations of the Chinese Government on labor protection and ensure safety in production and civilized production. The Labor Management Department of the Chinese Government is authorized to supervise and inspect their implementation.” Renmin Ribao, 27 July 1980 (promulgated by the State Council of the PRC on 26 July 1980).
Article 12 of the Income Tax Law of the PRC Concerning Chinese-Foreign Joint Ventures provides: “The tax authorities have the right to investigate the financial affairs, account books and tax situation of any joint venture. Such joint venture must make reports according to the facts and provide all relevant information and shall not refuse to cooperate or conceal the facts.” See infra note 61. The tax authorities are authorized by Article 14 to exercise their discretion in light of the circumstances to impose a fine on a joint venture that has violated the provisions of this law. In dealing with a joint venture that has evaded or refused to pay tax, the tax authorities, in addition to pursuing the tax payment, may impose a fine of up to but not exceeding five times the tax due in accordance with the seriousness of the case. Cases of gross violation shall be handled by the local People’s Courts in accordance with the law. See id.
Officials must strictly abide by due process of law while supervising, inspecting, or investigating the matter. For instance, “[o]fficials sent by tax authorities when investigating the financial, accounting and tax affairs of a joint venture, shall produce identification cards and undertake to keep secret” the information discovered. Rules for the Implementation of the Income Tax Law of the PRC Concerning Chinese-Foreign Joint Ventures, art. 27, Renmin Ribao, 15 Dec. 1980 reprinted in 1 China’s Foreign Economic Legislation 45 (1982, approved at the State Council of the PRC on 10 Dec. 1980 and promulgated by the Ministry of Finance on 14 Dec. 1980, hereinafter cited as JV Tax Law Implementation Rules).
- 33.
Joint Venture Law, supra note 13, art. 6, 1.
- 34.
Ren JianXin’s Remarks, supra note 23, p. 4.
- 35.
Joint Venture Law, supra note 13, art. 6, 3.
- 36.
See Answers, supra note 6, pp. 4, 12.
- 37.
Articles of Association of China-Schindler Elevator Co., Ltd. (JVC), China Economic News (Hong Kong), Supp. No. 3, 14 Apr. 1980, at 2–5, 8–10; cf. Agreement on the Establishment of a Joint Venture Elevator Company in the People’s Republic of China, China Economic News (Hong Kong), Supp. No. 2, 7 Apr. 1980, at 2, 6, 7, 10. [hereinafter cited as Joint Venture Agreement].
- 38.
Joint Venture Law, supra note 13, art. 6, 1.
- 39.
See Joint Venture Contract for the Construction and Operation of the Great Wall Hotel of Beijing (Extracts), Chap. 11, China Economic News (Hong Kong), Supp. No. 4, 21 Apr. 1980, pp. 2, 10–11.
- 40.
Id.
- 41.
Id. pp. 5–7, 12–13.
- 42.
Cf. supra note 37 and accompanying text.
- 43.
Joint Venture Law, supra note 13, art. 6, 2.
- 44.
See Answers, supra note 6, pp. 4, 12.
- 45.
Id.
- 46.
See Joint Venture Law, supra note 13, art. 6, 2.
- 47.
Id. 4.
- 48.
Provisions of the PRC for Labor Management in Chinese-Foreign Joint Ventures, reprinted in 1 China’s Foreign Economic Legislation 20–30 (1982, promulgated by the State Council of the PRC and effective as of 26 July 1980, hereinafter cited as Provisions for JV Labor Management).
- 49.
Id. art. 2.
- 50.
Id.
- 51.
See Answers, supra note 6, pp. 7, 14.
- 52.
Provisions for JV Labor Management, supra note 48, art. 3.
- 53.
Id. art. 4.
- 54.
Id. art. 5.
- 55.
Id. art. 9.
- 56.
Id. art. 8.
- 57.
Id. art. 10.
- 58.
Id. art. 11.
- 59.
See Answers, supra note 6, pp. 7, 15.
- 60.
Joint Venture Law, supra note 13, art. 7, 1.
- 61.
The Income Tax Law of the PRC Concerning Chinese-Foreign Joint Ventures, Renmin Ribao, 11 Sept. 1980, art.1, § 1, reprinted in 1 China’s Foreign Economic Legislation 36 (1982, adopted at the Third Session of the Fifth National People’s Congress and promulgated on 10 Sept. 1980, hereinafter cited as JV Tax Law).
- 62.
JV Tax Law, supra note 61, art. 2.
- 63.
Id. art. 3.
- 64.
Id. art. 3, § 2.
- 65.
Joint Venture Law, supra note 13, art. 7, 2.
- 66.
See supra note 20 and accompanying text.
- 67.
See Decision for the Amendment of the Income Tax Law of the PRC Concerning Joint Ventures with Chinese and Foreign Investment, Renmin Ribao, 3 Sept. 1983, (adopted at the Second Session of the Standing Committee of the Sixth National People’s Congress on 2 Sept. 1983).
- 68.
JV Tax Law, supra note 61, art. 5, § 2.
- 69.
Joint Venture Law, supra note 13, art. 7, 3.
- 70.
JV Tax Law, supra note 61, art. 6.
- 71.
Id. art. 3, § 2 (Rules for Implementation of the Income Tax Law of the PRC Concerning Chinese-Foreign Joint Ventures).
- 72.
See id. arts. 1 and 2; The Individual Income Tax Law of the PRC, Renmin Ribao, 10 September 1980, reprinted in 1 China’s Foreign Economic Legislation 75 (1982, adopted at the Third Session of the Fifth National People’s Congress and promulgated on 10 Sept. 1980, hereinafter cited as Individual Income Tax Law). See also Rules for the Implementation of the Individual Income Tax Law of the PRC, Renmin Ribao, 15 Sept. 1980, art. 5, reprinted in 1 China’s Foreign Economic Legislation 85 (1982, approved by the State Council of the PRC on 10 Dec. 1980 and promulgated by the Ministry of Finance on 14 Dec. 1980, hereinafter cited as Rules of Individual Income Tax Law).
- 73.
Individual Income Tax Law, supra note 72, art. 4, § 2.
- 74.
Joint Venture Law, supra note 13, art. 10, 2.
- 75.
Rules of Individual Income Tax Law, supra note 72, art. 9, § 1.
- 76.
See Joint Venture Law, supra note 13, art. 10, 2.
- 77.
Rules of Individual Income Tax Law, supra note 72, art. 9, § 2.
- 78.
JV Tax Law, supra note 61, art. 7.
- 79.
JV Tax Law Implementation Rules, supra note 32, art. 32.
- 80.
See Answers, supra note 6, pp. 6–7, 14.
- 81.
See Wei’s Speech, supra note 7 and accompanying text.
- 82.
See supra notes 65–81 and accompanying text.
- 83.
See Interim Regulations on Foreign Exchange Control of the PRC, Chaps. 1–7 (1980), reprinted in 1 China’s Foreign Economic Legislation 118-29 (1982, hereinafter cited as Exchange Control Regulations).
- 84.
Id. art. 1, 2.
- 85.
Id. art. 4, 2.
- 86.
Id. 3.
- 87.
Id. art. 14, 1.
- 88.
Id. art. 18.
- 89.
Id. art. 24, 1.
- 90.
Joint Venture Law, supra note 13, art.10, 1
- 91.
Exchange Control Regulations, supra note 83, art. 22, 1
- 92.
Id. art. 24, 1.
- 93.
JV Tax Law, supra note 61, art. 4
- 94.
See Answers, supra note 6, pp. 7–8, 15.
- 95.
Joint Venture Law, supra note 13, art. 12.
- 96.
Id. art. 13.
- 97.
See Answers, supra note 6, pp. 9, 15.
- 98.
Articles of Association of China-Schindler Elevator Co., Ltd. (JVC), supra note 37, pp. 7, 12; cf. Joint Venture Agreement, supra note 37, pp. 3, 8.
- 99.
Joint Venture Law, supra note 13, art. 14.
- 100.
See Answers, supra note 6, pp. 9, 16. See also Sino-Foreign Economic Contract Law, infra note 146.1, art. 37, § 2 and art. 38.
- 101.
Id. Under the Provisional Regulations on Lawyers, lawyers in the PRC are the state’s legal workers; they must be citizens of the PRC and have the right to vote and be elected for office. Therefore, a lawyer of non-Chinese nationality may be invited by a foreign party to appear in the Chinese court with the status of his client’s proxy rather than the status of an eligible lawyer. See Provisional Regulations on Lawyers of the PRC, Renmin Ribao, 26 Aug. 1980, arts. 1, 8, reprinted in 1 Commercial Laws and Business Regulations of the People’s Republic of China 1949–1983, pp. 457–59 (V.F.S.Sit ed. 1983, adopted at the 15th Session of the Standing Committee of the Fifth National People’s Congress on 26 Aug. 1980, hereinafter cited as Regulations on Lawyers).
In accordance with the same legislative spirit, the Civil Procedure Law of the PRC provides that if a foreigner or a foreign enterprise entrusts his case to a lawyer, that lawyer must be licensed in the PRC.CPL, infra note 196.
- 102.
See Answers, supra note 6, pp. 9, 16.
- 103.
Id. According to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 Mar. 1965, art. 1, § 2, 17 U.S.T.1270, T.I.A.S. No. 6090, 575 U.N.T.S.159: “The purpose of the Center shall be to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States in accordance with the provisions of this Convention.” Id.
- 104.
See Answers, supra note 6, pp. 9, 15.
- 105.
Id. art. 6.
- 106.
Provisions for JV Labor Management, supra note 48, art. 14.
- 107.
JV Tax Law Implementation Rules, supra note 32, art. 31.
- 108.
JV Tax Law, supra note 61, art. 15.
- 109.
Regulations of the PRC Governing Special Economic Zones in Guangdong Province, Renmin Ribao, 27 Aug. 1980 (approved at the 15th Session of the Standing Committee of the Fifth National People’s Congress on 26 Aug. 1980, hereinafter cited as Guangdong SEZ Regulations).
- 110.
The four regulations are the Guangdong Provisional Entry/Exit Regulations in SEZ [hereinafter cited as GP SEZ Entry/Exit Regulations]; Guangdong Provisional Labor and Wage Regulations in SEZ [hereinafter cited as GP Labor Regulations]; Guangdong Provisional Land Regulations for Shenzhen SEZ [hereinafter cited as GP Shenzhen SEZ Land Regulations]; and Guangdong Provisional Regulations for Business Registration in SEZ (adopted by the Guangdong Provincial People’s Congress on 17 Nov. 1981), reprinted in Moser, Guangdong’s SEZ—Four New Regulations Fill Important Gaps, China Bus. Rev., Mar.–Apr.1982, pp. 41–46.
- 111.
See Xiamen Daily, 24 Feb. 1985, p. 2.
- 112.
Guangdong SEZ Regulations, supra note 109, art. 14.
- 113.
The individual income tax in other areas of China rather than in the SEZ is levied on the income above RMB 800 Yuan at the progressive rates ranging from 5 % to 45 %. See Individual Income Tax Law, supra note 72, art. 3.
- 114.
Rules of Individual Income Tax Law, supra note 72, art.5. See also Ministry of Fert, Guide to Investment in China 133 (1982, hereinafter cited as Guide to Investment).
- 115.
Guangdong SEZ Regulations, supra note 109, art. 14. See also Guide to Investment. supra note 114, p. 134.
- 116.
JV Tax Law, supra note 61, art. 7. See also Guide to Investment, supra note 114, p. 134.
- 117.
Guangdong SEZ Regulations, supra note 109, art.13. See also Guide to Investment, supra note 114.
- 118.
Id. art. 16
- 119.
Hu Yaobang [4], p. 1.
- 120.
Zhongguo Fazhi Bao, 28 Dec. 1984, p. 2.
- 121.
GP Labor Regulations, supra note 110, arts. 3–4.
- 122.
Id. art. 2.
- 123.
Guide to Investment, supra note 114, at 134. See also GP Labor Regulations, supra note 110, art. 5. Article 5 provides: “The staff and workers employed by special zone enterprises shall be 16 years of age or older.” Id.
- 124.
GP Labor Regulations, supra note 110, arts. 8–9.
- 125.
Id. art. 7.
- 126.
Id. art. 10.
- 127.
Id. art. 11.
- 128.
Id. ARTS/12–14.
- 129.
Id. art. 17.
- 130.
GP Shenzhen SEZ Land Regulations, supra note 110, art. 4, p. 44.
- 131.
Id. art. 5.
- 132.
Id. art. 15, p. 45.
- 133.
Id. art. 16.
- 134.
Wenhui Bao (Hong Kong), 26 June 1982, p. 1 (Am.ed.).
- 135.
The Economic Contract Law of the PRC, art.55, Renmin Ribao, 17 Dec. 1981 (adopted at the Fourth Session of the Fifth National People’s Congress on 13 Dec. 1981, hereinafter cited as Economic Contract Law). For an English translation of the entire Economic Contract Law, see II∶1 China Law Reporter 61 (1982), reprinted in 22 I.L.M.330 (1983).
- 136.
See Economic Contract Law, supra note 135, art. 2.
- 137.
Id. art. 1.
- 138.
Id. art. 6.
- 139.
Id. art. 32.
- 140.
Id. art. 33.
- 141.
Id. art. 35.
- 142.
Id. art. 37.
- 143.
Id. art. 48.
- 144.
Id. art. 49.
- 145.
Id. art. 52, § 3 and art. 8.
- 146.
Sino-Foreign Economic Contract Law of the PRC, Renmin Ribao, 22 Mar. 1985, p. 2.
- 147.
Id. arts. 1, 43.
- 148.
Id. art. 2.
- 149.
Id. art. 5, § 1.
- 150.
Id. § 2.
- 151.
Id. art. 40.
- 152.
Id. art. 5, § 3.
- 153.
Id. art. 6.
- 154.
Id. art. 37, § 2.
- 155.
Id. art. 38.
- 156.
Trademark Law of the PRC, Renmin Ribao, 27 Aug. 1983, reprinted in 1 Commercial Laws and Business Regulations of the People’s Republic of China 1949–1983 at 289–293 (V.F.S. Sit ed. 1983, adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 Aug. 1982, hereinafter cited as Trademark Law).
- 157.
China Group Spokesman on New Chinese Trademark Law, China Economic News, No. 46, 29 Nov. 1982, p. 1.
- 158.
People’s Republic of China Trade Relations, 7 July 1979, United States-P.R.C., art. 6, § 2, 31 U.S.T.4651, 4657-5B, T.I.A.S.No.9630, hereinafter cited as Sino-American Trade Agreement, The Sino-American Agreement on Trade stipulates: “Both Contracting Parties agree that on the basis of reciprocity legal or natural persons of either Party may apply for registration of trademarks and acquire exclusive rights thereto in the territory of the other Party in accordance with its laws and regulations.”
- 159.
See Trademark Law, supra note 156, art. 9.
- 160.
Id. art. 10.
- 161.
Id. arts. 2–3.
- 162.
Id. art. 20.
- 163.
Id. art. 37.
- 164.
Id. art. 38.
- 165.
Id. art. 39.
- 166.
Id. art. 40.
- 167.
See China Group Spokesman, supra note 157, p. 2.
- 168.
Patent Law of the PRC, Renmin Ribao, 15 Mar. 1985, at 2 (adopted at the Fourth Session of the Standing Committee of the Sixth National People’s Congress, hereinafter cited as Patent Law).
- 169.
A Good Beginning for the Establishment of China’s Patent Law, Renmin Ribao, 15 Mar. 1984, at 1 (Editorial).
- 170.
Patent Law, supra note 168, arts. 1–2.
- 171.
Id. art. 3.
- 172.
Id. art. 6, § 2.
- 173.
Id. art. 10, §§ 1, 4.
- 174.
Id. art. 11, §§ 1–2.
- 175.
Id. art. 14, §§ 1–2. See also Zhang You-yu [5], p. 2.
- 176.
Patent Law, supra note 168, art. 12.
- 177.
Id. art. 18.
- 178.
Id. art. 19, § 1.
- 179.
See China Forms Patent Service Network, Xinhau News Agency Bulletin, 15 Mar. 1984, pp. 17–18.
- 180.
Id.
- 181.
Patent Law, supra note 168, art. 22, § 1.
- 182.
Id. art. 23.
- 183.
Id. art. 39.
- 184.
Id. art. 40.
- 185.
Id. art. 44.
- 186.
Id. art. 45, §§ 1–2.
- 187.
Id. art. 51.
- 188.
Id. art. 52.
- 189.
Id. art. 57.
- 190.
Id. art. 58.
- 191.
Id. art. 60, § 1.
- 192.
Id. art. 63.
- 193.
Id. art. 21.
- 194.
Id. art. 66.
- 195.
See Decision on Acceding to the Paris Convention on Protection of Industrial Property, Renmin Ribao, 15 Nov. 1984 (adopted at the Eighth Session of the Standing Committee of the Sixth National People’s Congress on 14 Nov. 1984).
- 196.
Civil Procedure Law of the PRC (for trial implementation), art. 3, § 1, Renmin Ribao, 14 Mar. 1982 (adopted at the 22nd Session of the Standing Committee of the Fifth National People’s Congress on 8 Mar. 1982, hereinafter cited as CPL).
- 197.
Id. art. 186.
- 198.
Id. art. 187.
- 199.
Id. art. 190.
- 200.
Id. art. 191, § 1.
- 201.
Id. art. 192.
- 202.
Id. art. 193.
- 203.
See supra note 141 and accompanying text.
- 204.
Id. art. 195.
- 205.
Id. art. 185.
- 206.
Id. art. 189.
- 207.
Id. art. 202.
- 208.
Id. art. 204.
- 209.
See Joint Venture Law, supra note 13, art. 14 and text accompanying note 99.
- 210.
Decision of the Government Administration Council of the Central People’s Government Concerning the Establishment of a Foreign Trade Arbitration Commission Within the China Council for the Promotion of International Trade, art. 12 (1954), reprinted in 2 Commercial, Business and Trade Laws: People’s Republic of China § L.2 (F. Chu, M. Moser & Q. Nee eds. 1983, hereinafter cited as Decision of 1954).
- 211.
Provisional Rules of Procedure of the Foreign Trade Arbitration Commission of the China Council for the Promotion of International Trade, arts. 1–38 (1956), reprinted in id. § L.3 [hereinafter cited as FETAC Rules].
- 212.
See Notice of the State Council Concerning the Conversion of the Foreign Trade Arbitration Commission into the Foreign Economic and Trade Arbitration Commission (1980), reprinted in id.§ L.6 [hereinafter cited as Notice of 1980].
- 213.
Decision of 1954, supra note 210, art. 3.
- 214.
See FETAC Rules, supra note 211, art. 13.
- 215.
Decision of 1954, supra note 210, art. 3.
- 216.
See, e.g., FETAC Rules, supra note 211, art. 3 (adopted on 31 Mar. 1956 at the Fourth Committee Meeting of the China Council for the Promotion of International Trade), reprinted in Commercial Laws and Business Regulations of the People’s Republic of China 1949–1983 at 447–449 (V.F.S. Sit ed. 1983): “Any other form of agreement to submit to arbitration, [however,] such as special agreement, exchange of correspondence or any specific stipulation contained in other relevant documents” will be recognized. Id.
- 217.
CPL, supra note 196, art. 192.
- 218.
Article 4 requires that the party commencing the arbitration specify its choice of arbitrator in its application or that it authorize the chairman of FETAC to appoint the arbitrator on behalf of the applicant. FETAC Rules, supra note 211, art. 4c. Within fifteen days of its receipt of the arbitration application, the respondent shall similarly choose its arbitrator or authorize the FETAC chairman to so choose. Id. art. 9. The two arbitrators then “select an umpire from among the members” of FETAC. Id. art. 1.
- 219.
Id. art. 12.
- 220.
Id. art. 27.
- 221.
Id. art. 21.
- 222.
Id. art. 18. But cf. Regulations on Lawyers, supra note 101, arts. 1, 3, 5, 8. These provisional regulations, it has been contended, “state by implication that foreign counsel is not qualified to practice law in China, and therefore cannot represent the foreign party during arbitration.” P.WIK, How to Do Business With the People’s Republic of China 150 (1984).
- 223.
FETAC Rules, supra note 211, arts. 20, 29, 30.
- 224.
Id. arts. 31–32.
- 225.
Id. art. 33.
- 226.
Joint Venture Law, supra note 13, art. 14.
- 227.
See, Guide to Investment, supra note 114, p. 232. The basic principles mentioned in the text have been stipulated in some bilateral international agreements. See, e.g., the Sino-American Trade Agreement, supra note 158, art. 8, at 4659. This treaty omits the requirement of referring the dispute to a Chinese arbitration tribunal before submitting it to third country arbitration.
- 228.
Id. at 4659–4660.
- 229.
As reported, this information was disclosed by the vice-minister of FERT of China, Wei Yuming. See Green Light for Establishing Foreign Enterprises in China’s Coastal Areas, China Economic News (Hong Kong) No. 42, 31 Oct. 1983, p. 1.
- 230.
China’s Policy of Opening to Outside to Remain Unchanged, Says Premier Zhao, Zinhau News Agency Bulletin, 12 Jan. 1984, at 74–75.
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CHEN, A. (2013). To Open Wider or to Close Again: China’s Foreign Investment Policies and Laws. In: The Voice from China. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40817-5_13
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