Shanghai Municipality, Special Administrative Measures for Foreign Investment Access in the China (Shanghai) Pilot Free Trade Zone (Negative List) (2013)

Revised on June 31 2014. Latest revision can be found at: http://www.chinalawandpractice.com/Article/3379497/Shanghai-Municipality-Special-Administrative-Measures-for-Foreign-Investment-Access-in-the-China.html

(Promulgated by the Shanghai Municipal People's Government on September 29 2013.)

Hu Fu Fa [2013] No.75

Remarks

Based on laws and regulations on foreign investment, the General Plan for the China (Shanghai) Pilot Free Trade Zone, the Foreign Investment Industrial Guidance Catalogue (Amended in 2011), etc., the Special Administrative Measures for Foreign Investment Access in the China (Shanghai) Pilot Free Trade Zone (the Negative List) set forth those access measures for foreign-invested projects and the establishment of foreign-invested enterprises in the China (Shanghai) Pilot Free Trade Zone (PFTZ) that are inconsistent with national treatment etc. The Negative List is categorised and prepared on the basis of the Classification and Codes for the Industries of the National Economy (2011), covering 18 industry categories. The Negative List does not apply to the two industry categories S, public administration, social security and social organisations, and T, international organisations.

For sectors not covered in the Negative List, foreign-invested projects will cease to be governed by the approval system and will instead be governed by the record filing system (except for projects where the State Council has specified that the approval system be retained for domestically invested projects). The administration of the contracts for, and articles of association of, foreign-invested enterprises shall be carried out through record filing rather than examination and approval.

In addition to the enumerated special measures for the administration of access by foreign investment, investment by foreign investors in industries the investment in which by foreign investors is prohibited (restricted) by the state or by international treaties to which China is a signatory or party is prohibited (restricted), and foreign investors are prohibited from investing in projects that would jeopardise national security or public safety or from engaging in business activities that would harm the public interest.

Acquisitions by foreign investors, strategic investments by foreign investors in listed companies and capital contributions by foreign investors made in the form of equity held in enterprises in China carried out in the PFTZ shall comply with the requirements of relevant provisions. Where national security reviews or anti-monopoly reviews are involved, matters shall be handled in accordance with relevant provisions.

Investment in the PFTZ by investors from the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan will be handled with reference to the Negative List. Where provisions of the Closer Economic Partnership Arrangement and its Supplements between the mainland and the Hong Kong Special Administrative Region or Macao Special Administrative Region, the Cross-straits Economic Cooperation Framework Agreement and the subsequent Cross-straits Agreement on Trade in Services, or a free trade agreement entered into by China are applicable to the PFTZ and have market opening measures more favourable for qualified investors, matters will be handled in accordance with the relevant provisions of the arrangement or agreement.

Pursuant to laws and regulations on foreign investment and as required for the development of the PFTZ, the Negative List will be revised as appropriate.

Shanghai Municipality, Special Administrative Measures for Foreign Investment Access in the China (Shanghai) Pilot Free Trade Zone (Negative List) (2013)