Simon Li, Susie Shi

In the Year 2018, China has promulgated a series of new regulations and policies in relation to foreign investment, which indicates the government’s determination to further expand market opening-up, attract foreign investment and inject new impetus into market competition and innovation.

Set forth below is a timeline of the major foreign investment regulations and policies issued nationwide in 2018:

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Authored by Simon Li<lixiameng@anjielaw.com>,   Susie Shi  <shiye@anjielaw.com> at AnJie Law Firm

Ren Gulong and Zhang Jiaqi

NPL MARKET IN CHINA

As China’s economic growth slows down, non-performing loans (“NPLs”) continues to rise. According to the regulatory indicators released by the China Banking and Insurance Regulatory Commission (“CBRC”), the balance of commercial banks’ NPLs reached RMB 2.03 trillion by the end of the third quarter of 2018. CBRC urges Chinese banks to make greater efforts to manage and dispose of their NPLs. As a matter of fact, supportive policies have been consecutively enacted by Chinese government in recent years so that more investors are given opportunities to participate in China’s NPLs market.

The major players in China’s NPLs market are the big four state-owned assets management companies (“AMCs”), which were established by the Chinese government in 1999 to purchase NPLs from the big four Chinese commercial banks. Since CBRC allows setting up of local AMCs to participate in NPLs disposal in 2012, over 70 local AMCs haven been established. In June 2018, CBRC further issued Pilot Management Rules For Financial Assets Investment Companies (《金融资产投资公司管理办法(试行)), encouraging commercial banks to set up a subsidiary to engage in swap of NPLs into equities.

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Authored by Ren Gulong <Ren Gulong@anjielaw.com>, Zhang Jiaqi <zhangjiaqi@anjielaw.com> at AnJie Law Firm

Ren Gulong and Yang Anshu

In early December 2018, UBS AG increased its shareholding in its PRC subsidiary, UBS Security Co., Limited (“UBS China”), to 51%, making UBS China the first securities firm in China controlled by a foreign entity. This is an important event in the financial market and UBS AG certainly takes the advantage of China’s new measures to open up its financial market.

Measures of financial opening-up were provided in the government work report of 2018 issued in March. This opening-up process speed up due to the trade war tensions with the United States. At the Boao Forum in April 2018, President Xi Jinping announced further open up of Chinese financial market. Immediately after the announcement, Mr. Yi Gang, the governor of the People’s Bank of China (“PBOC”), disclosed details of the opening-up measures and a timetable. As responses to Mr. Yi’s timetable, the past year 2018 witnessed several new rules issued and old rules amended.

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Authored by Ren Gulong <rengulong@anjielaw.com>, Yang Anshu <Yang Anshu@anjielaw.com> at AnJie Law Firm

Arthur Dong and Darren Mayberry

Eventually, civic life requires everyone to produce documents for inspection and approval. As individuals, we need to submit documents in connection with a new bank account, health insurance, job applications, enrollment into an institution of higher learning, occupational licensing, and evaluation for loans. Companies and organizations may have even more occasions and demands placed on them to produce documents. Even so, parties often resist the production of documents while in the throes of a commercial dispute. Perhaps this happens because the opposing party routinely makes the request, and not a neutral third-party. China’s institutional rules for arbitration, however, are silent as to whether the parties may request documents, and under what circumstances the parties may do so.

 

Arbitration in China seems to reflect an overall disposition of reluctance towards the document production process. Leading institutional rules in China offer wide latitude, but little guidance, as to document production procedure. As a practical matter, a China-based Tribunal is likely to order document production only within a narrow and proscribed range. Participants in China-based arbitration may consider whether to forgo the document production phase altogether. After all, the process can incur considerable time and expense. However, such a departure from international norms would also carry risk. If parties decide to exercise document production, it would seem wisest to adopt the CIETAC Guidelines on Evidence, and do so prior to any dispute.

 

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Authored by Arthur Dong <dongxiao@anjielaw.com>, Darren Mayberry <darren.mayberry@anjielaw.com> at AnJie Law Firm

Arthur Dong and Darren Mayberry

Machiavelli infamously instructs his Prince that “one ought to be both feared and loved, but as it is difficult for the two to go together, it is much safer to be feared than loved.”[1] Machiavelli ultimately wanted several disputes resolved, and Renaissance Italy thereby united. The Prague Rules pertain to a modern form of dispute resolution directed at far more tractable commercial disputes. It offers methods to run an arbitration on the cheap, a priority when the quantum in dispute remains low. The Prague Rules would blame Anglo-American, or common law, traditions for the prevalent costliness and delay of present-day commercial arbitration. The Prague Rules downplay their straightforward budget utility for modest-dollar disputes. The Prague Rules calculatingly courts controversy because proponents understand all too well that its cost-cutting devices will meet an unpopular and unloving reception.

This post introduces the Prague Rules and summarizes the highlights of its provocative Preamble. It looks at the origin of the Rules. This post then visits criticism of the Prague Rules. It then places the Prague Rules in their proper context. The Rules are compared alongside institutional efforts at efficiency. This post concludes with two observations. Established arbitration procedure need not fear the Prague Rules. The IBA Rules shall remain beloved.

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Authored by Arthur Dong <dongxiao@anjielaw.com>, Darren Mayberry <darren.mayberry@anjielaw.com> at AnJie Law Firm

Gulong Ren

The fourth edition of The Lending and Secured Finance Review has been released by the Law Reviews recently, which contains contributions from leading practitioners in 25 different jurisdictions. Each of the contributors has shared their expertise on the developments in the corporate lending and secured finance markets in their respective jurisdictions and on the challenges and opportunities facing market participants. It will be a useful source for practitioners and other readers.

Gulong Ren, a partner at AnJie Law Firm, authored the China chapter of the book. He specialises in acquisition finance, asset finance, commodity finance, debt capital markets, debt restructuring, general banking, project finance, real estate finance and structured finance. Mr. Ren has advised various financial institutions, including major international banks and key Chinese lenders, as well as corporate entities. His experience covers a wide range of sectors including financial markets, real property, infrastructure and transportation, mining and energy, pharmaceutical and healthcare, etc. He has authored several books on banking and finance practice.

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Authored by Gulong Ren (rengulong@anjielaw.com) at AnJie Law Firm

Michael Gu and Charles Xiang

Introduction

On 20 July 2018 the State Administration for Market Regulation (SAMR) published a decision fining two Shenzhen tally companies a total of Rmb3,163,108 for entering into a horizontal monopoly agreement[1]. According to the decision, China United Tally Shenzhen and China Ocean Shipping Tally Shenzhen reached and implemented an agreement to divide sales and service areas for the tallying market in the western area of the Port of Shenzhen. In addition, the two companies raised tallying prices from May 2013 to August 2016. As such, the two companies were found to have reached and implemented a monopoly agreement and thus violated Article 13 of the Anti-monopoly Law.

This is one of the first cases to be announced by the newly established SAMR[2] and may therefore indicate its attitude towards certain industries and behaviours. In particular, the way in which the competitors in this case were identified could raise new compliance challenges for companies doing business in China.

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Authored by Michael Gu <michaelgu@anjielaw.com>, Charles Xiang at AnJie Law Firm

Authored by ZHAN Hao (zhanhao@anjielaw.com), SONG Ying (songying@anjielaw.com) & Stephanie WU (wuyuanyuan@anjielaw.com) at AnJie Law Firm.

On August 9 2018, the finalised China’s three-pronged plan for consolidating its antitrust agencies under the State Administration for Market Regulation (SAMR) is released. This initiative has been anticipated and speculated on since the central government’s release of its structural reform plan on 21 March 2018. According to the government’s plan, the three-pronged plan should have been released on 20 June 2018, but this was substantially delayed due to differences of opinion regarding the reform.

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Authored by Michael Gu (michaelgu@anjielaw.com) & Sun Sihui (sunsihui@anjielaw.com) at AnJie Law Firm.

In 2017 the National Development and Reform Commission (NDRC) undertook a number of legislative and antitrust enforcement activities. It launched more than 80 investigations into enterprises and administrative agencies and imposed more than Rmb500 million in fines – a steady increase compared with Rmb353.1 million in 2016.

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Authored by Zhan Hao (zhanhao@anjielaw.com) ,Stephanie Wu ( wuyuanyuan@anjielaw.com) and Song Ying (songying@anjielaw.com) at AnJie Law Firm.

The concept of “shifting alliances” is derived from EU competition law. According to paragraph 80 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (2008/C 95/01) (the “Notice”), Where there is no stable majority in the decision-making procedure and the majority can on each occasion be any of the various combinations possible amongst the minority shareholders, it cannot be assumed that the minority shareholders (or a certain group thereof) will jointly control the undertaking . For example, in the case of an undertaking where three shareholders each own one-third of the share capital and each elect one-third of the members of the Board of Directors, the shareholders do not have joint control since decisions are required to be taken on the basis of a simple majority.

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