Impact of Article 43 of the Commercial Bank Law on PPP Projects
Posted on Tue, 29 Mar 2016 14:41:10 GMT by Zhong Lun
With the widespread use of the PPP model in China, financing channels for PPP projects have also increasingly diversified. Bank, trust, fund and insurance channels of capital have all rushed onto the stage of project financing. Subject to Article 43 of the Commercial Bank Law, banks, as the traditional big brother of financing, have always played the role of lender. In practice, the opinions as to whether they can participate in the bidding on, and contributing capital to, PPP projects as private investors have been mixed. A PPP project we recently advised on was called into question on a number of occasions because a commercial bank participated in the bidding as an investor and due to a difference of opinion among the parties on the understanding of Article 43 of the Commercial Bank Law. With respect to the project, the public party expressly stated in the bid invitation documents that “a bidder may be a consortium. One of the other members of the consortium may be a financial institution”. However, when a consortium composed of an investor and a certain commercial bank participated in the bid for the project and was awarded the contract, one entity raised questions with the public party, arguing that the participation by a commercial bank in the invitation of bids for a PPP project and the making of a capital contribution by it to the project company violates Article 43, and should therefore be deemed invalid.
What is the relationship between PPP and concessions?
Posted on Fri, 25 Mar 2016 15:32:30 GMT by Zhong Lun
From fledgling concessions to PPP that is sweeping the country today, there are two major sets of regulations to be followed: one being regulations for concessions led by the National Development and Reform Commission (“NDRC”) and the other the series of regulations for PPP led by the Ministry of Finance (“MoF”). However, to date, there is still not one law that expressly defines the relationship between the two, resulting in much confusion and many impediments in practice. The relationship between concessions and PPP is an issue currently desperately needing clarification.
Banking and Financing Adjust to New Economy
Posted on Wed, 30 Dec 2015 16:12:23 GMT by Zhong Lun
In the Chinese mainland, the slowed economy has profoundly influenced banking and financing investments and the resolution of relevant disputes. On one hand, the speed of economic development decelerated from near 10 percent to 7 percent and the structure of the economy continues to undergo major government reforms. Accordingly, the driving factors of economic development were turning from resources, materials and investments to efficiency, green initiatives and innovation. On the other hand, through either trillions in stimulus packages, suspension of initial public offering (IPO) projects or other macro-control mechanisms, the government still plays a critical role in this new normal. Considering these and other factors, banking and financing disputes reveal four fresh trends: complexity, expansion, quantification and crowded disputes.
A LOOK BACK AND THOUGHTS ON PPP LEGAL PRACTICE IN CHINA IN 2015
Posted on Fri, 04 Dec 2015 09:34:25 GMT by Zhong Lun
The current PPP tide in China driven by the Ministry of Finance and the National Development and Reform Commission witnesses the transformation and upgrading of large state-owned enterprises. These enterprises that have traditionally only been familiar with bid invitation, bid submission, and construction, have started to have an impact on numerous new areas such as project proposal and planning, company establishment and acquisition, fund establishment and operation, etc. Certain state-owned enterprises that got their starts fairly early have cultivated teams with extensive experience in investing, and certain enterprises that are just starting up are selecting young talent from various entities in all out effort to catch up. Private enterprises also participate enthusiastically.
The Legal Protection over Personal Information in China
Posted on Wed, 04 Nov 2015 12:16:04 GMT by Zhong Lun
Generally speaking, “personal information” refers to all the information relevant to an individual, which, once saved on computers or networks, shall be known as “personal data”. On the other hand, “individual privacy” refers to the information that an individual is not willing to disclose or the information that if disclosed, will cause adverse influence to the individual.
The Legal Protection over Personal Information in China
Posted on Wed, 04 Nov 2015 12:16:04 GMT by Zhong Lun
Generally speaking, “personal information” refers to all the information relevant to an individual, which, once saved on computers or networks, shall be known as “personal data”. On the other hand, “individual privacy” refers to the information that an individual is not willing to disclose or the information that if disclosed, will cause adverse influence to the individual.
POTENTIAL CHANGE OF CHINA’S FOREIGN INVESTMENT LAWS AND ITS EFFECT ON VIE STRUCTURES
Posted on Wed, 05 Aug 2015 16:49:47 GMT by Zhong Lun
On 19 January 2015, the Chinese Ministry of Commerce (MOFCOM) announced the Foreign Investment Law of the People’s Republic of China (Draft for Public Opinions) (the Draft for Public Opinions), publicly seeking input from society at large. Any interested party may put forth opinions and recommendations on the draft prior to 17 February 2015. As soon as this law (the Foreign Investment Law) is passed, it will combine the former three foreign investment laws into one and bring the case-by-case approval and management model for foreign investment to an end, and China will enter a new era of “limited approvals with full-scale reporting” for the regulation of foreign investment. That is to say, foreign investors making investments in items on the negative list will need to apply for an investment entry approval; at the same time, foreign investors making investments in Chinese territory will all need to fulfill reporting obligations, regardless of whether the investment is in an area on the negative list.
Interpretation of New Anti-monopoly Provisions in the Field of Intellectual Property Rights: a Corporate Compliance Perspective
Posted on Tue, 19 May 2015 16:30:08 GMT by Zhong Lun
[Abstract] As the first legal document specially making provisions on anti-monopoly issues in the field of intellectual property rights, the Provisions of the SAIC are of great significance. For various reasons, the Provisions have a narrow scope of application and are yet to be improved in respect of operability and predictability. Enterprises shall not understand and apply the Provisions in an isolated manner, but grasp provisions of relevant laws comprehensively and accurately with systematic thinking mode to ensure compliance in respect of anti-monopoly in the field of intellectual property rights.
Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation
Posted on Fri, 03 Apr 2015 17:26:47 GMT by Zhong Lun
The UN Commission on International Trade Law (“UNCITRAL”) held its 47th session in New York on 7-18 July 2014 and the Author had the privilege of attending the conference at invitation of Mr. Yu Jianlong, President of the Asia Pacific Regional Arbitration Group (“APRAG”). During the conference, the U.S. Government submitted a proposal suggesting Working Group II (Arbitration and Conciliation) of UNCITRAL (“Working Group II”) to develop a multilateral convention with respect of the enforceability of international commercial settlement agreements reached through conciliation (“Enforceability Convention”) for the purpose of encouraging the use of conciliation in resolving international commercial disputes.
Guangdong AIC Cracks Down on Abuse of Market Power
Posted on Wed, 25 Mar 2015 16:31:46 GMT by Zhong Lun
Last year the Guangdong Provincial Administration for Industry & Commerce (GDAIC) rendered a decision penalising Huizhou Daya Bay Yiyuan Water Purifying (Yiyuan) for abusing market dominance of bundling services. This is the first case of abuse closed by the GDAIC, and it has far-reaching implications on the enforcement of the Anti-monopoly Law (AML).
Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation
Posted on Fri, 20 Mar 2015 21:39:02 GMT by Zhong Lun
The UN Commission on International Trade Law (“UNCITRAL”) held its 47th session in New York on 7-18 July 2014 and the Author had the privilege of attending the conference at invitation of Mr. Yu Jianlong, President of the Asia Pacific Regional Arbitration Group (“APRAG”). During the conference, the U.S. Government submitted a proposal suggesting Working Group II (Arbitration and Conciliation) of UNCITRAL (“Working Group II”) to develop a multilateral convention with respect of the enforceability of international commercial settlement agreements reached through conciliation (“Enforceability Convention”) for the purpose of encouraging the use of conciliation in resolving international commercial disputes.
ICC and CIETAC Arbitration Practice Comparison — Case Study Note 1
Posted on Fri, 20 Mar 2015 21:37:13 GMT by Zhong Lun
One of the most important negotiated points by parties in contract negotiations is the dispute resolution clause. If parties agree on arbitration, they often negotiate which arbitration institution or arbitration rules will apply in resolving potential disputes.
Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation
Posted on Thu, 12 Feb 2015 14:48:07 GMT by Zhong Lun
The UN Commission on International Trade Law (“UNCITRAL”) held its 47th session in New York on 7-18 July 2014 and the Author had the privilege of attending the conference at invitation of Mr. Yu Jianlong, President of the Asia Pacific Regional Arbitration Group (“APRAG”). During the conference, the U.S. Government submitted a proposal suggesting Working Group II (Arbitration and Conciliation) of UNCITRAL (“Working Group II”) to develop a multilateral convention with respect of the enforceability of international commercial settlement agreements reached through conciliation (“Enforceability Convention”) for the purpose of encouraging the use of conciliation in resolving international commercial disputes. This Article proposes to share the Author’s understanding on the subject including the necessity of having the Enforceability Convention and current legislations of countries including China on the enforceability of settlement agreements reached through conciliation (“Settlement Agreements”) as well as concerns and thoughts on how to build up the Enforceability Convention.
Change and Transformation
Posted on Wed, 03 Sep 2014 17:01:07 GMT by Zhong Lun
Huijun Ma and Jiong Zhang of Zhong Lun Law Firm explain the laws and challenges of real estate & construction in the PRC, the investment and financing methods for real estate projects and the progress of REIT rules
The challenges of private capital
Posted on Wed, 03 Sep 2014 16:54:56 GMT by Zhong Lun
Jihong Wang and Zejun Lin of Zhong Lun Law Offices analyse the legal challenges created by using private capital to invest in infrastructure development, both in China and by Chinese enterprises looking outbound
Slow progress
Posted on Sun, 31 Aug 2014 22:20:52 GMT by Zhong Lun
Kejun Guo and Chen Jia of Zhong Lun Law Firm look at the latest developments in capital markets, including the reforms to the share offering system
More antitrust probes in the pipeline
Posted on Tue, 18 Feb 2014 10:16:31 GMT by Zhong Lun
Antitrust authorities are expected to launch more investigations this year in dozens of industries after expanding their teams nationwide, insiders have said.
Reducing the Cost of Patent Litigation
Posted on Wed, 31 Oct 2012 13:32:22 GMT by Zhong Lun
The problem of excess discovery expense is felt as much in patent litigation as any area of the law. This state of affairs motivated the Federal Circuit Advisory Council to take action. With the leadership of Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit, a committee of distinguished jurists and attorneys was formed to address the problem of increasing discovery cost. Rader noted to the committee — and later in his speech introducing the committee’s work product — that his deep concern about the expense of patent litigation stemmed from input he had received, not only in the United States, but from respected voices abroad.
Merger Control Watch (16) MOFCOM Conditional Clearance on Wal-Mart – Yihaodian Merger
Posted on Fri, 17 Aug 2012 18:09:38 GMT by Zhong Lun
Merger Control Watch (16) MOFCOM Conditional Clearance on Wal-Mart – Yihaodian Merger
China Merger Control Watch (15) MOFCOM Conditional Clearance of United Technologies - Goodrich Merger
Posted on Tue, 19 Jun 2012 10:59:52 GMT by Zhong Lun
On Friday, 15 June 2012, the Ministry of Commerce of China (MOFCOM) conditionally cleared United Technologies (UTC)’s $16.5 billion acquisition of Goodrich, which is the 7th decision published in the last 8 months (A total of 15 merger review decisions were published since 2008). Attached please find a bilingual version of the UTC – Goodrich decision prepared by Zhong Lun antitrust and competition team for your reference.