The Legal Environment and Risks for Foreign Investment in China

Transkript

1 The Legal Environment and Risks for Foreign Investment in China Bearbeitet von Shoushuang Li 1. Auflage Buch. xxii, 320 S. Hardcover ISBN Format (B x L): 15,5 x 23,5 cm Wirtschaft > Management > Internationales Management schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Foreword...V Preface...VII Acknowledgements...XI Abbreviations... XXI 1 Introduction: The Legal Risks of Foreign Investment in China Definition of Legal Risk of Foreign Investment Risk and Legal Risk Types of Legal Risks Embedded in Chinese Legal System Legal Risks for Foreign Investment in China Macro-analysis of Legal Risks in Investment Institutions Macro-analysis of the Legislation Regarding Foreign Investment and Its Risk China s Commercial Law and Its Legal Risks for Foreign Investment Macro-analysis of the Risks Arising from Foreign Investors Behavior The Risks from the Authorities Risks Arising From Foreign Investors Behaviors Part One: Legal Risks of Foreign Capital Entry 2 The Legal Risks of Green Field Foreign Investment Case Study: Legal Risks Behind the Curtain of Carley The Risk in Partners Choosing Risks of Registered Capital Contribution Legal Rules Regarding Registered Capital Contribution of Foreign-Invested Enterprises Some Special Risks with Contributions... 39

3 XIV 3 The Legal Environment and Risks for M&A by Foreign Investors in China Macro-Analysis of Current Legal Environment for M&A by Foreign Investors in China Insight into the Macro Legal Environment for M&A by Foreign Investors from the Perspective of Legal Rules Insight into Macro Legal Environment for M&A by Foreign Investors from the Perspective of Market Access Micro-analysis of Current Legal Environment of M&A by Foreign Investors in China Industrial Policies for Market Access Governmental Approval Procedures Asset Appraisal Transaction Pricing for State Assets Transfer Forms of Payment Time Limits of Payment Anti-trust Approval Labor Issue The Legal Risks of Foreign-Funded M&A Institution Risks Risks with Property Rights Transfer Operational Risks Risks Arising from Change of Enterprise Ownership Other Risks Appendix: Laws and Regulations Regarding M&A by Foreign Investors in China Modes and Risks for Foreign Investments in Restricted Industries Industry Entry Rules for Foreign Capital Basic Regulations Rules of Entry to Specific Industries by Foreign Investors Other Specific Arrangements Dancer in Shackles: Modes of Foreign Investment in Restricted Industries Case Study: Shanda s Contractual Control Mode Modes for Foreign Investments in Restricted Industries... 93

4 XV 4.3 The Legal Risk of the Modes for Foreign Investment in Restricted Industries Risks with Effectiveness of Contracts Risks in the Administration of Foreign Exchange The Outline of Anti-risk Measures for Foreign Investment in Restricted Industries Draft the Contracts to Be Perfect Risk Evasion by an Offshore Company Reversion Clause Part Two: Legal Risks in Operation of Foreign-Invested Enterprises 5 Changeable Government: Political Risks for Foreign Investment Nationalization and Expropriation History of Nationalization and Expropriation Nationalization The Risk of Changes to Economic Policies Huang Qiao Case Types of Change in Government Policy Suggestions for Combating Political Risks The Risks Coming from Local Government Localized Policy when Inviting Foreign Investment The Legal Risks of Localized Policy Corporate Governance Troubles in Sino-foreign Joint Ventures Difficulties in Managing Legal Entities Shown in the Upsurge of Foreign-Invested Enterprises General Situation of Corporate Governance Modes of Joint Ventures Corporate Governance of Joint Ventures Review Survey of Sino-foreign Joint Venture Corporate Governance Review of Legal Risks Arising from Sino-foreign Joint Venture Corporate Governance

5 XVI Risks of Existence Reliance: Review from the Aspect of Imbalance Between the Control Right and Residual Claim Right System Risks in Contorted Sino-foreign Joint Venture Management Structure Can Sino-foreign Joint Ventures Tend Towards Harmony? Failure in Dong Feng Nissan Joint Venture and Born of the Fundamental Law of Dong Feng Nissan Way for Joint Ventures to Go Toward Harmony as Shown in the Dong Feng Nissan Basic Law Political Policy Being the Essential Reason for Joint Venture Governance Troubles Tax Risks Under the New Tax Law Environment Introduction Cat and Mouse Game Between Tax Evasion and Anti-tax Evasion Black Hole in Foreign-Invested Enterprises Tax Road Map for Tax Evasion by Foreign Investors Anti-tax Evasion Action Upgrading in China Spread of Anti-tax Evasion Storm APA Limits Transfer Pricing Prevention of Weakening Capital Started by the Enterprise Income Tax Law (Draft) Unification of Income Tax and Its Risks for Foreign Investment Income Tax Reform Coming Games on Unification of Income Tax Reform Unification of Income Taxes Moving Ahead Under Debating Appendix I: Tax Law Applicable to Foreign-Invested Enterprises Appendix II: Current Chinese Foreign-Invested Enterprise Income Tax System Land Use Right Risks in Foreign Investment Introduction Legal Issues in Foreign-Invested Enterprises Use of Land Policies Change Ways for Foreign-Invested Enterprises to Obtain Land Use Right

6 XVII Fee for Land Use Right Term for Land Use Rights Land Risks in Foreign Investment Legal Risks in Developing Zones Land Transfer Legal Risks in Land Requisition Legal Risks in Contribution with Collectively Owned Land Legal Risks in Land Offered by Local Governments for Free Lack of Judicial Remedy to Land Disputes Labor Legal Risks of Foreign-Invested Enterprises Labor Legal Risks Shown in Trade Union Disputes Widespread Foreign Enterprises Refusal of Establishing Trade Unions Risks Increasing in Refusal to Establish Trade Unions Reflection of Tense Employer-Employee Relation by Refusal of Establishing Trade Unions Overview on Foreign-Invested Enterprise Labor Law Rules Foreign-Invested Enterprise Labor Legislation Provisions on Labor Contracts of Foreign-Invested Enterprises Insight into Foreign-Invested Enterprises Labor Risks Case Analysis of Foreign-Invested Enterprises Legal Risks Brief of Labor Legal Risks in Foreign-Invested Enterprises Legal Risks Arising from Controversial China s Draft Labor Contract Law Highlights of the Draft Implications of the Draft Part Three: Legal Risks for Foreign Investment in Specific Industries 10 Modes and Legal Risks of Foreign Investment in Nongovernmental Education in China Introduction Foreign Investment Modes of Non-governmental Education Summary of Legal System for Non-governmental Education

7 XVIII 10.4 Legal Risks for Foreign Investment in Non-governmental Education in China Legal Risks Shown by Ren Jingxi s Withdrawal Insight into Legal Risks for Foreign Investment in Non-governmental Education Legal Risks for Foreign Investment in China s Water Market Introduction Basic Information of Foreign Investment in China s Water Market Big Events in Foreign Investment in the Chinese Water Market BOT Mode of Foreign Investment in Water Industry BOT in China Case Study: Chengdu Sixth Waterworks Insight into Legal Risks for Foreign Investment in Chinese Water Market Under BOT Mode Foreign Water Companies Failures Under a Flawed BOT Legal Environment Detailed Analysis on Legal Risks for Foreign Investment in the Chinese Water Market Under BOT Mode Appendix: Laws and Regulations on Foreign Investment in China s Water Market Legal Risks for Foreign Investment in the Insurance Industry Introduction of Foreign Investment in China s Insurance Industry Brief View on China s Insurance Industry Brief View of Foreign Investment in China s Insurance Industry Laws and Regulations on Foreign Investment in China s Insurance Industry Participation in Insurance Companies New Establishment Specialties of Capital Contribution Legal Risks for Foreign Investment in China s Insurance Industry Withdrawal of Foreign Insurance Companies Signals Risks Insight into Legal Risks for Foreign Investment in Insurance Industry Appendix: List of Chinese Insurance Laws and Regulations

8 XIX 13 An Insight into Foreign Investment Dispute Resolution in China Insight into Commercial Dispute Resolution in China Introduction Assessment of China s Civil Justice System Current Reform and Further Proposals Alternative Dispute Resolution (ADR) China s Perspective on Commercial Dispute Resolution Conclusion: How to Choose an Ideal Commercial Dispute Settlement Mechanism in China Characters of a Chinese-Style Judicial Decision-Making Process The Government-like Judicial System and Judicial Decision-Making Decision-Making by the Judicial Committee Local Governments and the Peoples Congress Influence on Decision-Making of Localized Courts CPC s Committees or Committees of Political and Legislative Affairs Influence on Judicial Decision-Making Lobbying and Judicial Decision-Making Appendix: A Typical Chinese Judicial Process Insight into Chinese-Style Arbitration A Crisis in China s Arbitration History Chinese Characters of Arbitration The Root of Risk in Chinese Arbitration Mediation in China Mediation in the Litigation Process Mediation in the Arbitration Process Mediation in the Mediation Center Managing the Future The Strategy for Foreign Investment Under Power-Oriented Economy References