The Practical Application of China Business
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Volume VIII - Number II
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March 2007
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Liquidating A China Business
In This Issue : Company Law & The Liquidation Process Financial & Tax Considerations Accurately Assessing Liabilities Formation of the Liquidation Committee Applying For Bankruptcy
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Welcome to this issue of China Briefing magazine
Welcome to the March issue of China Briefing as we look at liquidating your China business. Too many
Chris Devonshire-Ellis Senior Partner, International Practice, Dezan Shira & Associates ; Publisher, China Briefing
businesses do not take sufficient care or attention when structuring their initial investment – however within the media hype about China, not enough is made of the downside of China investments – namely clearing it all up when it goes fatally wrong. We don’t wish to pour cold water on what is still – if researched and executed properly – a great market to be in, but there is always a downside. Therefore this month we look at the implications of liquidating your China subsidiary, the reporting procedures and structuring of this, as well as the tax and legal implications of doing so. Liquidations can often be the best solution to a China investment gone wrong – enabling you to wipe the slate clean and start again. However, there are laws in place as one would expect to protect employees and creditors, within this issue we explain how these are implemented and the impact on your investment. This complete issue has been written by the business advisory (legal) and corporate tax accounting services team of Dezan Shira & Associates, China’s largest independent national business advisory firm. For more details of their services, offices, and a downloadable brochure, please visit them at www.dezshira.com. May we wish you a great China spring and successful March !
Alberto Vettoretti Managing Partner, China Practice, Dezan Shira & Associates ; Vice-Publisher, China Briefing
With best wishes Chris Devonshire-Ellis
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This Month's Cover Art This month's cover is by Changsha born photographer Huang Jiayam and is composed to illustrate the conflicts that can arise between China and the West. Nonetheless, the symbolism does imply a positive outcome. Courtesy of The Rain Gallery, 798 Art District, Chaoyang, Beijing. All materials and contents © 2007 China Briefing Media Ltd. No reproduction, copying or translation of materials without prior permission of the publisher. Contact: Editor@china-briefing.com
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Liquidating A China Business
LIQUIDATING A CHINA BUSINESS M
ost foreign businesses in China do very well and are profitable. However, there will be some that do not succeed commercially, or that may have to close because of external circumstances affecting their parent company overseas. In addition, some of the earliest businesses established since ”opening up and reform” will come to the end of their natural lives, maybe at the ten year point, and require to be wound up. In these circumstances, the interests of a number of “stakeholders” need to be properly protected and balanced – shareholders, of course ; employees ; customers, creditors and debtors ; and the local authorities as regulators and tax collectors. The closure of a company may often provoke strong emotions and feelings of uncertainty for many of those involved, too. There are of course regulations under Chinese law for how these processes should properly be carried out, to ensure that the company’s final bills are settled, tax is paid, staff are properly handled, and all the company’s remaining liabilities and statutory responsibilities are correctly discharged. In this month’s issue of ‘China Briefing’, we explain the procedures you would need to go through to close a foreign invested enterprise in China, and highlight the many related issues that you will need to address. We hope that you never have to go through the process, at least for negative reasons, but if you do, it must be done professionally and correctly.
COMPANY LAW AND THE LIQUIDATION PROCESS
Upon the declaration of dissolution, the company is required to start the liquidation procedures.
[ By Zoe Zhou, Manager, Guangzhou office and Fiona Yuan, Manager, Shenzhen office, Dezan Shira & Associates ]
Creation of Liquidation Committee
The procedures for closing a WFOE – its dissolution and liquidation - are no easier or shorter than the process of setting up such a company, and normally take between six to nine months to complete. According to PRC law, a WFOE must be dissolved if any of the following circumstances apply : 1. Its term of operation expires. 2. It experiences financial difficulties and the Board deems it necessary to dissolve the company. 3. It is unable to carry out its business due to major losses caused by force majeure. 4. It is bankrupt. 5. It is terminated by the government, for example because it commits illegal acts damaging the public interest. 6. Other reasons for dissolution stipulated in the original Articles of Association have occurred. For circumstances (2), (3) and (4), dissolution will need the approval of the original approving authority.
1. The board will need to appoint a liquidation committee to handle the liquidation within 15 days from the dissolution date of the company. 2. The liquidation committee shall liquidate and value the company’s assets in accordance with PRC Law and the Articles of Association. 3. The liquidation committee shall consist of at least three members appointed by the Board, including the legal representative of the company, the debtors representative and relevant government officials, and shall also engage certified public accountants and lawyers. 4. The liquidation committee shall have the right to terminate employment contracts, to sell, export, transfer, assign or otherwise dispose of any and all assets belonging to the company whether they be inside or outside the PRC, as well as to conclude all business matters of the company, in accordance with PRC Law and the principles set out in the Articles of Association.
5. The liquidation committee shall exercise the following functions and powers during liquidation : a) liquidate the assets of the company, prepare a balance sheet and list of assets, and formulate the liquidation plan b) make an announcement for the benefit of unknown creditors and notify known creditors in writing c) complete any unfinished business of the company d) submit the appraisal and valuation of assets and the basis for calculation e) pay all outstanding taxes f) pay all outstanding debts in full g) settle all of the company’s claims and debts h) dispose of the remaining assets after the company’s debts have been settled i) represent the company in any civil litigation j) produce the Liquidation Report and submit to the Board of Directors and the authorities for approval.
Liquidation Audits Liquidation audits are generally required twice in the process : when the termination application is submitted to the authorities and the application is approved by those authorities
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when all termination procedures have been completed As well as normal audit procedures, liquidation audits focus on these additional issues : the financial performance of the company for the six months before the date of declaring liquidation the completeness and truth of information on assets, such as : · whether the calculation of accounts receivable is correct · whether the bad debts write-off was properly authorised · whether the bank account records are complete · whether physical assets properly belong to the company · whether disposal/loss of fixed assets is approved by related authorities · whether investing assets are recorded and distributed correctly the liabilities of the company, such as : · whether salaries payable are calculated correctly · whether tax payable has been cleared properly · whether other liabilities have been cleared properly the liquidation expenses, including a check on whether these expenses were spent in compliance with the law
Liquidation deadlines The liquidation committee shall observe the following deadlines : within seven days of beginning the liquidation, the relevant authorities must be notified within 15 days of beginning the liquidation, the liquidation committee must be established within 10 days of establishing the liquidation committee, it must notify known creditors and ask them to declare their claims within 10 days of establishing of the liquidation committee, it must release an announcement in both a national newspaper and an appropriate provincial or municipal newspaper. Within 60 days of establishing the liquidation committee, it shall make at least one additional public announcement. within 180 days of beginning of the liquidation, liquidation report must be submitted to the approving authority
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within 10 days of submitting the liquidation report, liquidation committee should perform the de-registration procedures with tax and customs authorities and get corresponding statements
Distribution of liquidated proceeds In accordance with PRC Law, revenues from the sale or disposal of the liquidated assets shall be paid out in the following order : (a) liquidation expenses, including expenses for management, sales and distribution ; expenses for public announcements, lawsuit and arbitration ; remuneration to members of and advisors to the liquidation committee ; and other expenses occurred during the liquidation (b) wages and mandatory welfare payments for employees (c) outstanding taxes (d) outstanding secured debts (e) other outstanding debts After payments have been made in accordance with provisions above and upon completion of the liquidation procedures, the remaining revenue shall be converted into US$, or any other foreign currency acceptable to the investor through a designated foreign exchange bank or any other method permitted by PRC Law, and can be freely remitted or transported abroad.
Within 10 days from submission of the Liquidation Report, the company should perform de-registration with the authorities, and after de-registration, the company can repatriate the remaining funds back to the investor. These deregistrations and other processes are : de-registration from Ministry of Commerce, and cancellation of the Approval Certificate tax audit and de-registration from local tax bureau tax audit and de-registration from state tax bureau Customs de-registration de-registration with SAFE de-registration from SAIC de-registration of Business Code Certificate public announcement in a newspaper to terminate the business remit funds back to investors close bank accounts In addition, some companies in particular sectors may have other specialised registrations and those should be closed off as well. Although not strictly a financial issue, foreign investors should also ensure that, for example, unused raw materials and unsold products are disposed of properly, and in an environmentally sensitive way, and that buildings and other major assets are dealt with properly. Do not walk away from your responsibilities !
Cancellation of registration Upon completion of the liquidation procedures, the liquidation committee shall submit the Liquidation Report, approved by the Board, to the original approval authority. The committee should return its business license and cancel its registration with the relevant government authorities including the Ministry of Commerce, State Administration of Industry and Commerce (SAIC), the customs administration, the tax authorities and State Administration of Foreign Exchange (SAFE). All the company’s bank accounts shall be closed.
FINANCIAL & TAX CONSIDERATIONS WHEN LIQUIDATING
The investor shall have the right to preserve the originals of all accounting records and business documents of the company.
Foreign invested enterprises in China that undergo liquidation will need to deal with two main tax issues. These are :
[ By Edward Ma, Manager, and Jessica Hou, Associate, Beijing office, Lynn Liu, Manager, Shanghai office, and Helen Liu, Senior Manager, Shenzhen office, Dezan Shira & Associates ]
Liquidating A China Business clearance of outstanding tax liabilities - the liquidation committee must meet any potential and actual tax liabilities. After confirmation, the liquidation committee will pay the outstanding tax liabilities to relevant departments. new tax liabilities during liquidation - the liquidation itself may raise new tax liabilities - for example, fixed asset disposal may raise some turnover taxes, and employee compensation will be subject to Individual Income Tax. We explore these in more detail in this section.
Clearance of outstanding tax liabilities Clearance of outstanding Foreign Enterprise Income Tax (FEIT) liabilities As regular readers will know, many foreign enterprises currently receive various incentives, which may include “tax holidays” such as a two year exemption and three year 50% reduction of FEIT. Such “tax holidays” normally only apply to companies on the assumption that they are expected to operate for at least ten years. Enterprises which are granted with this tax relief, but actually operate for less than ten years, are required to repay the amount of tax exempted or reduced. Note, of course, that these “tax holidays” arrangements are expected to change when the new Enterprise Income Tax Law takes effect.
Enterprise income tax refund for reinvestment of profits Article 10 of the Income Tax Law of the PRC on Enterprises with Foreign Investment and Foreign Enterprises states that a foreign investor that directly reinvests its share of the profits distributable from a foreign investment enterprise, by either increasing the registered capital of that foreign investment enterprise before the profits were distributed or establishing another foreign investment if the profits were distributed, may obtain a refund of 40% of the tax paid on the reinvested amount, subject to approval of the tax authorities. In addition, if profits shall be reinvested for at least five years, and if the investor withdraws the reinvested profits within five years, the tax refunded shall be returned to the tax authorities.
Therefore, if a foreign investor reinvests its share of the profits distributable from a foreign investment to non-taxable project, and its operation period is less than five years, then 40% refundable tax amount or whole tax amount should be remitted back. The formula is : Tax refund = A/[1 - (B + C)] x B x D where A = reinvested amount B = original foreign enterprise income tax rate applicable to the enterprise C = local income tax rate applicable to the enterprise D = refund rate If the operation period for foreign enterprise enjoying preferential treatment is less than ten years, then the tax refund should be remitted back to the local government when liquidating.
Treatment for accrued expenses in liquidation According to regulations in the “Manufacturing Enterprises Accounting System”, manufacturing enterprises should accrue various proportions of their total local employee payroll in various funds – namely 14% into the welfare fund, 2% into the trade union fund and 1.5% into an employee education fund. It should be noted that the 2% accrued into the trade union belongs to the trade union on liquidation, not to the liquidation committee. However, the final balances of the welfare fund and the employee education fund should not be considered as liabilities for distribution to employees, but rather as company income, and should be adjusted during liquidation and is liable to foreign income tax. For enterprises with normal operations, several transaction taxes e.g. stamp duty, deed tax should be declared within a certain period after the relevant activity occurs. But majority of taxes are declared periodically, for example monthly. Thus, after liquidation begins, there is a possibility that the enterprise’s remaining tax amount is not declared and paid. And business transactions before liquidation could still be completed within the liquidation period and would bring new tax liabilities. Both these issues will need to be taken into account by the liquidation committee.
New tax liabilities during liquidation During the liquidation period, asset disposal and termination of employees, amongst other issues, may possibly create new tax liabilities.
Asset disposal There is no difference between assets transferring during liquidation and assets disposal in daily operations. But as the purpose of assets transfer during liquidation is for assets distribution, the tax liability would be considered differently. Part of the tax liability would be considered as a liquidation expenses and paid preferentially in advance of other expense.
Import VAT and custom duty Customs prescribe different monitoring years for imported products of different kinds. During the monitoring period, goods should be depreciated at true value if Customs authorises their sale, transfer or move for other uses, for example during liquidation. In this situation, both import VAT and custom duties should be levied. The relevant formula is : Price after tax = CIF price x [1 - actual number of months used/(management years x 12)] Secondly, if a foreign invested enterprise wishes to transfer goods originally imported with an import VAT exemption, if goods are left with a Chinese partner or transferred or sold to a domestic enterprise, Customs would calculate the tax amount based on the depreciation year. If they are transferred to other foreign enterprises enjoying preferential tax treatment, then the goods could still enjoy such preferential treatment.
Turnover taxes Turnover taxes involved in assets transfer during liquidation will usually be value added tax, business tax, consumption tax and land appreciation tax. There is no specific regulation related to turnover taxes for assets transfer in liquidation.
Assets taxes Relevant taxes could include urban real estate tax and vehicle and vessel usage tax for foreign invested companies.
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During liquidation, before transfer of such vehicles and vessels, foreign enterprises would still have tax liabilities.
Individual Income Tax Employees from liquidated enterprises would usually receive a certain amount of compensation, and foreign enterprises must withhold Individual Income Tax for such payments in the normal way. If they do not do so, then tax bureau would pursue these tax amounts, which may increase the cost of liquidation.
Foreign Enterprise Income Tax (FEIT) The liquidation period would be considered as separate taxable period to calculate FEIT. The relevant formulas are : Liquidation gains/losses = (gains/losses from inventory disposal) + (gains/losses from non-inventory disposal) + (gains/ losses from asset disposal) Net assets/retained assets = (liquidation gains/losses) – (salary/mandatory welfare benefits payable) – (liquidation expenses) – tax due – other liabilities – losses on bad debts + income from repaid debts Liquidation income = net assets/retained assets – accumulated non-distributable profits - funds balance after tax + surplus on assets valuation - capital surplus – surplus reserves + donated assets obtained + paid-in capital In most cases, the liquidation period will probably be the final tax payment period. According to current law, profits from the current year could only be set off against the previous year's loss. Therefore, classification of income and expenses for the liquidation period and the previous year is quite important. Choosing the correct liquidation date could mean significant tax efficiencies. As ever in these circumstances, get good professional advice !
Special treatments for liquidation on bankruptcy Normally liquidation is performed when assets are greater than liabilities, and there should be no problem in paying any taxes that become due. But if foreign enterprises make losses due to poor operation and management and cannot pay their tax liabilities, or
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assets are less then liabilities during liquidation, then the enterprises would be considered as insolvent or bankrupt. Because assets from such insolvent enterprises cannot meet all their liabilities, it is very important to determine the order in which taxes are tax cleared. Currently when a foreign enterprise performs insolvency liquidation, it is not the Bankruptcy Law but other civil laws that apply. But in these civil laws there is no specific definition of insolvency expenses, and foreign enterprises may therefore have some flexibility when dealing with this issue.
ACCURATELY ASSESSING LIABILITIES EMPLOYEES
According to the regulations, the tax should be paid before assets disposal, otherwise it would affect assets transfer. These tax liabilities would be paid preferentially. But for other tax liabilities, if they are considered as liquidation expenses, it may affect the repayment rights for other debts, while if they are combined with other due taxes, then it would affect repayment rights for other debts before tax due. Overall, the tax authorities might lose some income.
As we have already explained, when liquidating a company, salaries, mandatory welfare benefits and severance payable to employees are paid second only to liquidation expenses themselves. For companies with a large workforce, this can be a large cost and needs to be quantified accurately.
All this complexity means a foreign enterprise must, in such circumstances, think very carefully about how it proceeds, and take proper professional advice.
Tax de-registration After the foreign enterprise completes all its liquidation procedures and pays its taxes, the relevant tax bureau would proceed to cancel its tax registration. After that, the foreign enterprise can complete the other de-registration procedures mentioned previously. The following materials should be submitted to the tax bureau : 1. Application Letter, with relevant authorisation certificate and other documents 2. Liquidation audit report 3. Liquidation report 4. Tax clearance certificate for all taxes 5. Approval Letter for liquidation from authority that approved original establishment 6. Application and Examination Form for Tax Registration Termination, and other documents required by tax bureau.
[ By Adam Livermore, Senior Associate, Dalian office, and Marie Bi, Manager, Beijing office, Dezan Shira & Associates ]
Only once the “workforce” has been clearly defined can the liability be assessed. Therefore the first step should be to cross-reference the full list of employees with the corresponding labour contracts and information concerning salary payments. Employees should have been paid their salaries in full up to the end of the month preceding the announcement of the liquidation. The labour contracts will also tell you how long each employee has officially worked at the company – compensation for termination of employment will be calculated based on the salary and length of employment. Finally, evidence of payment of the various mandatory welfare benefits should be checked to ensure there is no money owed. Checking the contractual obligations should be a relatively straightforward task. The date of contract commencement and its term should be stated on the document. Most employment contracts will have a length of one year and there will be a section where the employee signs to extend the contract every year. For employees that have worked for the company less than ten years, there is effectively no severance pay because the liability for the company is limited
Liquidating A China Business to the period left on their employment contract. Some employment contracts may have a clause stipulating the amount of compensation to be paid in the event of one of the parties violating the contract terms. In this situation if the amount specified for contract violation is lower than the remaining amount unpaid in salary, the company’s liability is limited to this amount. Irrespective of whether the remaining period of the contract is paid up or whether the contract violation penalty is paid, the company should have no responsibility for payment of social welfare for the employee after official termination of employment. However employees that have worked with a specific company for more than ten years have a right to enjoy “open-ended contracts”. These employees can receive a month of pay (based on the average salary they earned during the most recent year of employment) for every year they have worked with the company. For employees that have worked their entire life at the same company and are approaching retirement this can be a considerable amount, potentially up to three years of salary. In some cases it would be cheaper to pay their salary until retirement, however there is no allowance for this under current labour laws. Of course most foreign invested enterprises have only been operating here in China for a decade or less, so in theory the liability for employee compensation should not be huge. Unfortunately it is not uncommon to find instances where foreign investors have taken over the operations of StateOwned Enterprises (SOEs), and perhaps unwittingly, absorbed the liability for payment of workers’ severance pay during their period of work for the company prior to its incorporation as a foreign invested entity (FIE). Although labour laws state that labour contracts should be terminated, severance paid by the old employer and new contracts signed with each worker, in practice these payments have not always been made. Certain areas in China have issued regulations requiring the new owner of the business to be responsible for all such legacy liabilities. Investors involved in projects of this nature where workers used to be affiliated to SOEs would be
advised to check the exact status of the potential liabilities they have incurred or may incur. Once the basic salary liability has been calculated, the social welfare and housing fund situation should be verified. Some companies going into liquidation face cash flow problems, and one of the first expenses to be neglected is often employees’ benefits. Checking the receipts from the social security bureau and the housing fund centre will tell you when the latest payments were made for each employee. Note that the social security bureau has the right to add on a late payment penalty for outstanding contributions at a rate of 0.3% per day, but the housing fund centre cannot do this. This can also mount up to a large sum if such payments remain outstanding for a number of months.
So, can a foreign investor make a strategic retreat from their Chinese investment without being chased by the creditors ? The short answer, not surprisingly and quite properly, is “no”. This is a critical issue that must be considered not only during the closing down of a business, but also in the process of running of the enterprise.
Limited liability of FIEs and potential liabilities for foreign investors Foreign invested enterprises (FIEs) such as WFOEs and JVs are independent legal persons and own their own assets and properties. The foreign investors, in principle, only bear the limited liability for their investment to the extent of their registered capital originally brought into China. However, under certain circumstances, foreign investors may be held personally liable for their investment activities beyond the capital contribution obligation. The potential liabilities applying to those foreign investors who “walk away” differ from those who face bankruptcy or voluntary liquidation.
Penalties for “walking away” RISKS IN JUST “WALKING AWAY” FOR FOREIGN INVESTORS [ By Marie Bi, Manager, Beijing office, Dezan Shira & Associates ] As the saying goes - “happy families are all alike; every unhappy family is unhappy in its own way”. It is the same for foreign investment in China. Though most foreign investments here are successful and generate considerable profits for their investors, some investors do wish to close down their businesses either because of poor profitability, global restructuring, or for some other reasons. However, can a foreign investor choose to just “walk away” if there are no substantial assets left in their business ? Will the investor who does so incur any liability that can be enforced against him or his other assets in China or elsewhere ?
According to business registration regulations in China, it is the investor’s obligation to register properly when the business is created and update the registration authority in the event of any significant changes of circumstances. If a foreign invested company is being wound up, the foreign investor is required to de-register the company before they may take back any remaining assets of the company. In other words, you must tell the authorities. De-registration is, as we explained earlier, triggered by the approval, by the Ministry of Commerce, of the winding up the business. The de-registration can only take place after the company has gone through liquidation procedure, as described above, including a liquidation audit, and the payment of any liabilities to the tax authorities, Customs, employees, and creditors. If a foreign investor fails to meet this obligation, and instead “walks away” without going through a proper liquidation, the registration authorities are entitled to
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impose a fine of between RMB10,000 and RMB100,000 on the company and to revoke its business license. In addition, the legal representative of the FIE whose business license is revoked, and who is personally liable for such revocation, shall be banned from being appointed to director, supervisor, or other senior management positions for three years in any other business entity in China as from the date of revocation of the business license. The names of the “walk away” investors are blacklisted in the official archives of the registration authorities, such people and they may be barred from the China market in the future. In many cases of this kind there are remaining assets or property in a failed FIE. In this situation, as well as the legal representative being sanctioned as discussed above, under Chinese law it is held that a foreign investor who did not go through a liquidation proceeding but took back the assets of the FIE should be held liable for all of the company’s remaining debts and liabilities. These are serious penalties ! Get it wrong in China, and you won’t be coming back, and you will be properly pursued for all that you owe. This is no different to any other proper jurisdiction, and investors should not believe they can escape “scot free”.
Liabilities for foreign investors in bankruptcy As readers may know, the new Enterprise Bankruptcy Law of the People’s Republic of China (the “Bankruptcy Law”) was adopted on 27 August 2006 and will take effect on 1 June 2007. This will supersede the Enterprise Bankruptcy Law (Trial) enacted in 1986, and new arrangements for cross-border insolvency and enforcement of creditors’ claims. The Bankruptcy Law stipulates in Article 5, “(t)he validity of any bankruptcy proceedings commenced in accordance with this law shall extend to the properties of the debtor outside of the People’s Republic of China”. For the first time, a claim can be made over the assets of foreign investors in a bankruptcy case in an exterritorial jurisdiction outside of Chinese territory. The bankruptcy administrator is responsible for bringing actions against any debtors on behalf of the company during bankruptcy proceedings.
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According to the new Bankruptcy Law, any foreign shareholder who had not fully paid up their registered capital shall be held liable for this inadequate capitalisation. Some Chinese legal scholars also argue that in a cross-border bankruptcy, the foreign investor should be treated as a subordinate creditor compared with other creditors, if the investor claims creditor’s rights in an FIE that they control and they are guilty of poor management, improper dividend policy, breach of any relevant laws, or fraud. Some even say that the foreign investor shall be held liable for all of the debts of the FIE by applying the doctrine of “piercing the corporate veil”, and adopting just and equitable consideration if the foreign investor has abused its control over the subsidiary.
Enforcement of judgment or arbitration award against foreign investors If a Chinese court makes a ruling to hold a foreign investor liable for their Chinese entity debts, the petition for enforcement against the investor may be made either by the Chinese creditors or the bankruptcy administrators in one of two different ways. Firstly, in the event that the foreign investor has assets or other investment in China, the Chinese creditors or the bankruptcy administrator may make a petition to the court to freeze these properties. The foreign investor shall either settle the debt with their Chinese creditors to release the frozen property, or their properties shall be auctioned and used to pay to the creditors. It should be noted that according to the mutual arrangements on recognition and enforcement of civil judgments between Mainland China and Hong Kong and Macao, the assets and properties of the foreign investor located in Hong Kong and Macao may also be subject to enforcement by their creditors in Mainland China. Secondly, even if the foreign investor does not have any assets or investment in China, and there is no mutual agreement on recognition and enforcement of civil judgments between China and the investor’s country of origin, he is still not safe from the claims of the Chinese creditors in China. In this case, the Chinese creditors may file a petition to
a court in the foreign investor’s home jurisdiction for the recognition and enforcement of a court judgment against the foreign investors according to the applicable law in that jurisdiction. In addition, if there is an arbitration agreement between the foreign investor and its Chinese creditors, and the Chinese creditors file for arbitration in an established arbitration commission instead of civil litigation in a Chinese court, the application made by the Chinese creditors for recognition and enforcement of the arbitration award obtained from the arbitration institution shall be upheld pursuant to the so-called New York Convention of 1958, the United Nations Convention on Recognition and Enforcement of Foreign Arbitration Awards, with 142 signatory countries (see www.uncitral.org/uncitral/en/uncitral_ texts/arbitration/NYConvention.html for more details). In the case of bankruptcy, as the US, UK, and many other countries have adopted the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency (the “UNCITRAL Model Law”), these countries shall accept “foreign representatives” from China operating under Article 5 of the Bankruptcy Law, when they are pursuing assets in those countries as part of China bankruptcy proceedings where the Chinese creditors can establish that China is the “centre of main interests” of the debtor (see www. uncitral.org/uncitral/en/index.html for more details). It should be noted that although the UNCITRAL Model Law does not provide any benefits on reciprocity, the US and other Model Law countries will confer substantial “recognition” and cooperation for China representatives, even though there are fewer reciprocal benefits to the U.S. or other foreign players in China.
Conclusion It is therefore clear that, whatever the circumstances and whatever may have happened in the past, foreign investors cannot, and should not, simply “walk away” from a failed business in China. With the growing confidence of the Chinese people, and the proper protection of both local and international laws, the interests of Chinese creditors, employees and the community at large are now defensible.
Regional Updates
Regional Updates BEIJING The New Labour Contract Law – major changes in the “Second Draft” [ By Richard Hoffmann, Senior Associate, Dezan Shira & Associates Beijing office ]
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fter receiving 191,000 comments from the public regarding the “First Draft” of this new law, the National People’s Congress (NPC) has prepared the “Second Draft”. This was recently released for public consultation and the NPC Standing Committee is expected to approve the law later this year, perhaps as early as the full NPC this month. In comparison with the “First Draft”, the “Second Draft” contains some major changes regarding fixed term contracts, probationary periods, non-competing agreements, mass-layoffs, the making of company rules and the interpretation contracts. Some changes favour employees, some favour employers. Here we explain some of the issues. It is also worth noting in this context that there is ongoing pressure for more foreign companies in China to form trade unions.
Fixed term contracts One of the main reasons for drafting a new labour law was to give more security to employees. The “First Draft” only allows one fixed term contract, with no renewal possible. Any further employment is automatically deemed to be an open term contract. However, the “Second Draft” allows two fixed term contracts. After expiration
the employer has to agree on open term contract if the employee asks for this. But no automatic open-term contract means a much better situation for employers. An employer must pay severance to any employee whose fixed-term contract is not renewed, to the amount of one month of salary for each year served. That means, if an employee served 12 years in your company you have to pay him 12 months salary ! Bear in mind also, in the case of JVs, that the new company inherits these liabilities for all staff who transfer to it.
Probationary period The maximum probation period is fixed and depends on the length of the terms of the contract, thus : one month, if contract term is less than one year two months, if contract term is less than three years six months, if contract term is more than three years The “Second Draft” requires employers to pay their employees at least 80% of their contractual salaries during the probation period.
Mass-layoffs
10% of total staff. In addition, employers must explain the circumstances of the layoff to the trade union or to all its employees, giving 30 days advance warning. Again, this is an advantage for the employer regarding the “First Draft”.
Interpretation of contract The “First Draft” said that if no written contract exists, then the employee automatically has an open term contract. But under the “Second Draft”, employees can insist on a written contract within one month of starting work, and an employer who fails to provide such a contract after a month would be forced to pay the employee twice their salary. Even if this sounds disadvantageous for the employer it isn’t, if you compare the situation with the “First Draft”. There is no automatic open term contract and if the employee fails to ask, they will not receive double salary. For requests regarding the labour law, assistance in structuring your business and contract drafting, please contact Richard Hoffmann in the Beijing office of Dezan Shira & Associates, at richard. hoffmann@dezshira.com, tel. 010-6510 2288.
A mass-layoff is defined in the “Second Draft” as the laying off of 20 employees or
CHINA BRIEFING 2007 GUIDE TO CHINA'S BUSINESS TAXES Our new guide to China’s business taxes as affects foreign investors and individuals working in China is now available priced at USD20 plus p&p. Covering all aspects of taxes for Representative Offices, Wholly Foreign Owned Enterprises, Joint Ventures, Expatriate Individual Income Tax, VAT, Customs Duties, Claiming Tax Rebates, China’s Double Tax Treaties as well as comment on the new income tax unification, this is a book no individual or manager working in China should be without.
Order online at http://shopping.china-briefing.com or email sales@china-briefing.com to obtain your copy today China Briefing | March 2007 9
China’s economy - great expectations for a “cooler” 2007 [ Sumita Ghosh, Senior Researcher, Investment Intelligence Unit, Dezan Shira & Associates ]
T
he National Bureau of Statistics (NBS) and the National Development and Reform Commission (NDRC) held their annual open-door event in Beijing on 26 January to discuss newly released 2006 economic data and to give a sneakpeek into 2007 projections. NBS official Wang Wenbo noted, “our analysis on China’s macro economy performance in 2006 can be simply expressed as ‘perfect’. We’re now looking forward to a 'cooler' 2007 !” In his speech, Wang paid credit to the central government for implementing tightening measures to prevent economic crisis last year, notably the controls placed on real estate investment, loan and market entry. The first-half of his
speech emphasised satisfaction with 2006 macro factors, or the “five positive characteristics” - improvement in the quality and structure of investment, increased industrial and agricultural outputs while also increasing consumer demand and spending, continued growth in GDP, increased urban and rural income, and efficient use of energy. Despite a positive outlook for 2007 and expectations for a soft landing, Wang, in the rest of his speech, expressed concern with the macro challenges of 2006, and noted that some would prove contradictory to the achievements made last year. That will spill-over to challenge China’s aims to achieve “balanced development” in 2007. He stressed the
government’s commitment to confronting the following macro performance issues in the year ahead : growing trade surplus over-reliance on investment and export growth need to boost imports excess liquidity inflationary risk currency valuation over-invested industries state asset sales risk low domestic consumption growth fragile and incomplete social security system growing unemployment high energy and raw materials consumption
China’s economic forecasts - “Seeking truth from facts” (Han Dynasty idiom from ‘The Han Book’)
Unit
2005
% change
2006
% change
2007 forecast
GDP
Indicator
RMB bn
1839
10.4
2094
10.7
n/a
Fixed assets investment
RMB bn
886
25.7
1098
24
1345
Retail Sales
RMB bn
672
12.9
764
13.7
859
Exports
US$bn
762
28.4
969.1
27.1
15%
Imports
US$bn
660
17.6
791.6
19.9
20%
Trade surplus
US$bn
102
Urban disposable income per capita
RMB
10,493
9.6
11,759
12.1*
11.5 (actual growth)
Rural net income per capita
RMB
3,255
6.2
3,587
10.2**
9 (actual growth)
1.5
-0.3
-0.2
34
1066
30
1250
Consumer Price Index Foreign exchange reserves
%
1.8
US$bn
819
177
150
Source: NBS and the State Information Centre (SIC) – think tank under the NDRC. * 12.1% after deducting price factors. Actual growth, 10.4%. **10.2% after deducting price factors. Actual growth, 7.4%.
REMINDER – THE NEW EXPATRIATE INDIVIDUAL INCOME TAX REPORTING DEADLINE IS 31st MARCH 2007 As we explained in the previous issue of “China Briefing” (see archives section at www.china-briefing.com), from this year, individuals in China earning in excess of RMB120,000 (USD15,000) per annum must self report their earnings and updated personal information by the end of March 2007. The deadline for completing this is 31st March. Penalties exist for individuals not in compliance, and these can mean fines as well as examination of the legality of their stay in China. If you need assistance or clarification with handling or going about this, please contact Dezan Shira & Associates tax department to assist. We provide a national service and can answer questions and assist with employee individual income tax reporting to keep them in compliance. Please email tax@dezshira.com and we will deal with your enquiry on a fast track basis.
10
China Briefing | March 2007
Regional Updates
SHANGHAI OFFICE Need for speed – new bullet train between Hangzhou and Shanghai [ By Olaf Griese, Senior Business Development Associate, Shanghai office, Dezan Shira & Associates ]
A
t 7:15 p.m. on 28 January 2007, the first CRH (China Railway Highspeed) train left Hangzhou with nearly 700 passengers, arriving in Shanghai 90 minutes later. The new “bullet trains”, or Dong He Du in Chinese, use multiple engine-powered carriages alongside non-powered units in order to raise travel speeds. Theoretically, the trains are capable of traveling at speeds up to 250 km/h, although they are restricted to a maximum speed of 160 km/h until after 18 April when national rail network will upgrade its speed limits.
cities even closer to their regional hub. Surprisingly, the ticket prices for the “bullet train” and the traditional variety are identical - RMB 44 for a “soft seat” class ticket for a distance of 200 km is a price which would startle users of the
Shanghai
Jinghang Canal
Hangzhou the Qiantang River Estuary
Japanese, French or German highspeed trains. Although the trains don't currently run much faster than the previous models, they look much faster. Both ends are tapered like a bullet, and the inside is less spacious than traditional carriages, a little similar to the Shanghai’s Maglev. The main target customers are business travelers - the passenger seats all have an integrated table with power for a laptop. There is enough baggage space for suitcases in addition to well designed onboard washroom and bathroom facilities.
A comprehensive rapid rail transportation network connecting Shanghai, Jiangsu, Zhejiang – indeed the whole Yangtze River Delta - is taking shape. The new trains will travel between Shanghai and Nanjing, capital of Jiangsu Province, as well as Hangzhou, capital of Zhejiang Province. The cities are already well connected, but the “bullet trains” the need for speed – will bring these
SOUTH CHINA Inconsistencies in Regional Free Trade Zone License Applications [ By Helen Liu, Senior Manager and Fiona Yuan, Manager, Shenzhen office, and Zoe Zhou, Manager, Guangzhou office, Dezan Shira & Associates ]
Guangzhou and Shenzhen Foreign Trading Companies registered in Free Trade Zones (FTZs) are, in theory, allowed to expand their business scope to enjoy the rights of import/export and distribution in China now widely conducted through Foreign Invested Commercial Enterprises (outside FTZs). In practice, however, we have found that some of the FTZs are not implementing this locally for the time being, and still force FIEs to use local agents and traders to facilitate their transactions. Usually, the expansion of the business scope will need to be accompanied by an increase of registered capital.
We have recently supervised a number of set ups in various FTZs, which applied different practices and regulations to the same investment scenario, even within the same city ; it is therefore advisable to seek professional help and compare the practices in different zones before a decision is taken.
Guangzhou Not all the districts in Guangzhou are open to the registration of Representative Offices (ROs) of foreign companies. Currently, ROs were not allowed to be set up in the districts of Panyu, Huadu, Conghua and Zengcheng. We recommend that you check with the local authorities
that you are lawfully allowed to register your local entity, especially before you commit to any lease agreement.
Dongguan A labour law training program for the Chief Representatives of foreign companies ROs in Dongguan has been established by the local authorities. This now a compulsory step during the set up process for ROs. However, rather than attend yourself, you could authorise, through a Power of Attorney, local RO staff to attend the course on your behalf.
China Briefing | March 2007
11
It’s the little things that matter in China.
BEIJING 菊花 Chrysanthemum
SHANGHAI 白玉兰 Magnolia
DALIAN 槐花 Chinese Scholar Tree
GUANGZHOU 木棉花 Kapok
SHENZHEN
勒杜鹃
Bougainvillea
HONG KONG 紫荆花 Bauhinia
All Chinese cities have their own designated flower. One of the little details about China that gives you a greater insight into local knowledge and culture. At Dezan Shira & Associates, we believe that the same applies in China legal and tax matters. Attention to detail, and an understanding of local culture. And with a truly national presence, and fifteen years of experience, we appreciate this more than most. If you need to know the large, as well as the little things that matter in China business advisory and tax consulting, call us today. Beijing Regional Office :
Shanghai Regional Office :
Shenzhen Regional Office :
Contact : Sabrina Zhang, Regional Partner
Contact : Olaf Griese, Senior Associate
Contact : Fiona Yuan, Manager
Beijing@dezshira.com
Shanghai@dezshira.com
Shenzhen@dezshira.com
Tel : (010) 6510 2288
Tel : (021) 6358 8686
Tel : (0755) 8366 4120
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Dalian Regional Office :
Guangzhou Regional Office :
Hong Kong Regional Office :
Contact : Adam Livermore, Senior Associate
Contact : Rosario DiMaggio, Senior Associate
Contact : Alberto Vettoretti, Managing Partner
Guangzhou@dezshira.com
Hongkong@dezshira.com
Tel : (020) 3877 2776
Tel : (852) 2376 0339
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Dalian@dezshira.com Tel : (0411) 8255 9061