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.
相关法律服务
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
外商投资国际海运及辅助服务有哪些投资形式和股比限制？
法律概念与规则层面，根据我国入世承诺及相关外商投资海运管理规定，国际海运服务及部分辅助服务领域实行外商投资准入限制，原则上要求采用中外合资经营或中外合作经营的企业形式。对于国际海运货物运输、国际船舶代理、国际船舶管理、国际海运装卸、集装箱站与堆场等核心业务，外方投资者的出资比例不得超过合资企业注册资本的49%。而国际海运货物仓储和船舶日常服务则允许设立外商独资企业或合资企业，股比不受上述限制。n案件事实与实务场景方面，文章指出，2004年演讲时中国已通过《外商投资国际海运业管理规定》细化上述安排。例如，国际海运服务中的客运与货运、船舶代理、船舶管理等均被列入限制类，须由中方保持控制权，且合资企业的董事长和总经理应由中方人员担任。相比之下，国际海运货物仓储和船舶日常服务被列为允许类，外资可设立独资公司。这一区别体现了中国在开放过程中对核心航运服务与外围配套服务的差异化准入政策。n实务指引与风险提示方面，拟进入中国海运市场的外资企业需首先识别拟经营业务是否属于限制类。若属于限制类，应提前物色中方合作伙伴，确定股权比例并约定公司治理安排，尤其注意董事长和总经理的委派权。同时，仓储及船舶日常服务领域因允许独资，可降低合资谈判成本，但需关注后续资质申请和属地监管要求。建议在投资前全面梳理目标业务对应的开放目录，避免因股比设计不符合强制性规定导致审批受阻。
设立外商投资国际海运企业需要满足哪些条件？审批流程如何？
法律概念与规则层面，外商投资国际海运企业的设立条件因业务类型而异。对于国际海运运输业务，企业应拥有适于国际海运的船舶且其中须包含中国籍船舶，持有提单或客票等单证，并配备经交通主管部门认可资质的高级管理人员。对于国际船舶代理业务，则要求企业高级管理人员中至少有两人具备三年以上国际海运从业经验，并具有固定营业场所及与港口、海关等政府部门进行电子数据交换的能力。相关审批实行双重许可制。n案件事实与实务场景方面，文章详细列明了审批程序：首先向交通运输主管部门申请设立，取得批准文件后向商务主管部门申请设立许可，再凭两部门的批准文件到市场监督管理部门办理营业执照，最后向主管部门申请取得国际海运经营批准证书。此外，合资企业的经营期限一般不超过二十年，且在某些业务中董事会董事长及总经理须由中方指定。文中强调，高级管理人员的定义、经验证明等均为审查重点，实践审批中对材料真实性核查较严。n实务指引与风险提示方面，外资企业应提前准备船舶权属证明、中国籍船舶配置方案、管理人员资历文件及电子数据交换系统建设方案。因审批涉及多个部门，建议先完成可行性研究再启动申报，避免因前置条件缺失导致反复补正。经营期限的约定需结合投资回收周期设计，若超期需提前申请续期。同时需关注后续监管要求，如船舶运力变更、高管人员变动等应依法办理变更备案，确保持续合规经营。
港澳投资者在物流航运领域享受哪些特殊待遇？
法律概念与规则层面，根据内地与香港、澳门签署的更紧密经贸关系安排（CEPA）及其附件，港澳投资者在物流航运领域获得优于其他外资的特殊市场准入待遇。具体而言，在部分原本要求合资或限制外资股比的领域，允许港澳投资者设立外商独资企业。例如，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业务，以及船务公司等，港澳资本均可独资运营。这体现了内地对港澳地区的单向开放政策。n案件事实与实务场景方面，文章提到，2003年签署的CEPA附件四专门规定了投资便利化条款。与一般外资必须采用合资形式且海运运输外资股比不超过49%的要求相比，港澳投资者可突破股比限制，以独资形式进入特定航运辅助服务领域。文中特别列举了船务公司这一类型，意味着港澳投资者可以独立开展相关业务，无需寻找内地合作方。这一特殊安排在吸引港澳资本参与内地物流航运建设方面具有显著作用。n实务指引与风险提示方面，港澳投资者应核实自身是否符合CEPA规定的投资者定义，包括自然人身份证明或企业注册地、实际经营地等条件。虽然股比放开，但企业设立仍需遵守相关行业管理规定和审批程序。实务中常见争议是港澳企业是否通过中间层享受优惠，监管部门通常会审查受益所有人。建议准备完整的商业登记材料和实际运营证明，并在合资合同中明确适用CEPA条款，避免因法律适用不清而丧失优惠待遇。此外，CEPA项下的开放范围可能动态调整，投资前应查阅最新政策清单。
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
