With the implementation of China's "going out" strategy, a large number of national and local energy and mineral enterprises such as PetroChina and Sinopec, as well as local enterprises such as Longxing International Resources Development Group and Hegang Mining Group are rapidly investing in Russia. However, it is worth noting that there are legal insecurity factors, that is, legal risks, which may lead to the failure of Russian enterprises' huge mineral investment in China. In this regard, the central and local authorities and corporate investors have not paid enough attention.
The legal risk of Russian mineral investment refers to the possibility of adverse legal consequences caused by insufficient humanistic and legal preparation and lack of systematic investigation and countermeasures on the humanistic and legal environment of host country's investment when investors make decisions and make specific investment behaviors. Legal risks are closely related to economic and political risks, because changes in economic and political factors may lead to legal risks. "In the event of legal risks, it is difficult for enterprises to control themselves, which often brings quite serious consequences, sometimes even subversive disasters."
Because China invested in Russian to participate in foreign competitive industries, compared with all kinds of investors in western capital exporting countries, it lacks overseas investment experience and faces great legal risks. It should have invested more money to prevent legal risks. But in fact, Chinese enterprise managers lack legal safety awareness of overseas investment, invest little in legal risk prevention and take almost no safety measures. All these reflect that the relevant government departments and "the top managers of large state-owned enterprises have not fully realized the harm brought by legal risks to enterprises". The following is a description of the four legal risks of China enterprises investing in Russian energy and mineral resources.
First of all, overseas investment projects lack comprehensive and in-depth legal evaluation.
After investigation, we found that China's evaluation of Russian mineral investment projects mostly focuses on economic and technical argumentation, and the legal content involved is superficial, lacking targeted formal expression, and lacking in-depth attention and professional analysis of Russian investment legal factors, that is, lacking in the investigation of the legal relationship network and legal norms of real rights closely related to host country investment, such as the analysis of other real rights, land rights, publicity system and registration rules, as well as the analysis of overseas capital system and company law, which must be followed by enterprises.
Our investment feasibility analysis reports are often kind words to our superiors. Some reports are too optimistic to be true, lack real legal dynamic information, cover up potential problems, turn a blind eye to unstable factors such as Russian investment environment, investment legislation, nationality, etc., only analyze the feasibility and avoid in-depth research on the infeasibility.
An overseas investment project, no matter how perfect the economic and technical demonstration is, will hide legal risks if it is omitted in legal preparation, which will lead to practical obstacles and mistakes in implementation, and the result will inevitably lead to losses or even failures of the project.
Economic and technical argumentation around enterprises' overseas investment cannot replace legal work. The legal risks of overseas investment are hidden in every link from project start-up to business activities. From the bidding design of the host country, the strategy of attracting foreign investment, the means of controlling people flow and logistics by local law enforcement departments to the authenticity of the audit report of the equity transfer company, the real reasons and motives of the company's equity transfer and its legitimacy, the validity period of the mineral use license, the actual state of the license being withdrawn or cancelled, the burden set by the shareholders of the company on all its shares, the financing behavior of the company among enterprises, the undisclosed compensation or compensation agreement that the company may have with the third party, and the defects in the company's ownership registration, all these will give investors. These problems are unavoidable for any foreign investment project. Not only that, but also understand these basic issues, complete the legal due diligence investigation on the humanistic legal environment of the project involving the main body and the host country, and form legal opinions and strategic plans. Professional lawyers can only enter the actual operation after issuing legal due diligence reports and legal opinions on the project.
For Russian enterprises investing in China, based on the characteristics of many sources, wide distribution and running through the whole process of project operation, China should make necessary legislation, set up a new pre-procedure for legal evaluation of unapproved mineral investment projects, and require enterprises to entrust professional international lawyers to conduct necessary legal due diligence and submit special legal opinions, so as to substantially improve the evaluation level of China's foreign investment projects and improve the risk evaluation and elimination mechanism. For projects that have been put into production, government departments and mineral investment enterprises should organize Russian economic and legal experts to conduct a comprehensive legal review, so that investment enterprises can eliminate potential risks as soon as possible.
Second, the design of investors lacks legal strategy considerations.
From the expulsion of PetroChina from the Russian Slavic Oil Company's share auction to the failure of China National Offshore Oil Co., Ltd.' s acquisition of Unocal Oil Company in the United States, it shows that China's state-owned capital companies have been resisted by the target countries in overseas mergers and acquisitions. This forces us to think about the qualifications, commercial subjects and legal status of China investors in the international mineral energy investment competition, and how the problems arise. In the process of China enterprises' internationalization and deep participation in the world market, China's local legal culture and resources are far from enough. It is necessary to inspect and clean up the legislation and norms of developed countries, international organizations and investment host countries on a global scale, identify, select, absorb and digest legal and cultural resources that are beneficial to China's economic development and globalization, and stimulate the vitality of China's legal and cultural construction. It has become a legal, technical and strategic issue for China enterprises to "go global", improve their global competitiveness and avoid huge legal risks by using international commercial law resources and various feasible legal tools.
China's enterprises investing in Russian minerals lack the consideration and prevention of legal strategy in the main position of investment in Russia, hardly use any resources in international commercial law, and expose the source and ownership of state-owned capital in broad daylight, or it is easy for Russian professionals to find out the details.
On the other hand, Russians are wary of foreign companies with public ownership or state-owned capital background investing in Russia's energy and mineral fields. Because this kind of company makes them feel that non-market factors and national will are working in the dark. The auction of shares of Russian Slavic Oil Company illustrates this point. In this case, in order to exclude China's state-owned capital oil companies and protect Russian oil companies from winning the bid, the Russian Duma temporarily invoked the privatization law, forcing the Russian government to revise the tender announcement, so that China companies were not entitled to participate in the tender because the state-owned shares exceeded 25%, and China Oil Group suffered huge losses. As far as PetroChina itself is concerned, the equity auction of Slavic Oil Company is an unsuccessful case, but it has reference significance for the export-oriented development of the whole national economy. As far as this case is concerned, the significance of the success of CNPC's investment behavior lies not only in itself, but also in China's foreign economic management department and various foreign-funded enterprises in China. If we learn from the failure of China Petroleum Group in a timely, accurate and comprehensive way, it will become a catalyst for other foreign-funded enterprises to invest successfully in China.
Today, when China enterprises invest heavily in Russian minerals, this case plays an important warning role and should be highly valued by competent departments at all levels and Russian mineral investment companies. Because we can't confirm when, how and under similar or other pretexts, Russian investors have been excluded from the mineral business in China.
The consideration of legal strategies designed for investors is a basic and complicated legal field that should be paid attention to in China's overseas investment, because it involves many factors such as public law relations and private law skills, and its purpose is to solve the problems of privatization and internationalization of overseas investment enterprises in China. If this problem is not solved, it will be difficult for foreign-invested enterprises in China to truly integrate into the international and host economy, and it will lay a foundation for their future development.
China's foreign-invested enterprises and legal circles should make joint efforts to conduct in-depth research on the investment law, land law, environmental protection law, company law and civil law of the host country, investigate all kinds of offshore companies and multinational companies, and explore the practical problems, operation methods and legal skills of China's foreign-invested enterprises in using various legal tools such as offshore companies and multinational companies, so as to provide professional help and relief for enterprises in legal practice.
Third, the human resources and cadres of overseas business are weak.
Obtaining the right to use foreign mineral resources is only the first step of the project. What follows is much more complicated. More than 80% of the risk of investing in Russia lies after obtaining the right to use minerals.
Can China's "going out" investment capital be transformed into profits and resources and then "come back"? Will the operation, use and circulation of huge investment abroad get out of control, leading to the loss of overseas state-owned assets? Can our team cope with all kinds of accidents during the operation? All these depend on the adaptability of our overseas management team to invest in the Russian mainland, the host country. In fact, the core of risk control of overseas investment and operation is a team of well-trained professional cadres with strong combat effectiveness.
According to our contact with the staff of Russian mining investment enterprises, we found that most of them don't really know Russia. Moreover, some of them are still using their thinking habits and ideas formed in China to evaluate and measure all Russian tendencies, resulting in a large number of signs. There is a gap between the overall conditions and quality of our existing team and our work tasks in Russia. Overseas investment enterprises in China "don't know the international market, don't know the legal culture, and the measures and funds to prevent legal risks are far from enough, and they have no practical experience".
Russia we are facing is such a host country. It took her 65,438+0,000 years to make her nation the largest "landlord" and property owner in the world. What kind of team does a country that traditionally values land and resources above all else and is closely linked with international politics need to invest in minerals and obtain resources on its own territory?
The variability of Russian national character and the irregularity in their bones cannot guarantee that their promises will be fulfilled. On the other hand, as a capital importing country, Russia also has comprehensive legal advantages in legislation, law enforcement and judicature. In addition, there are different political views on the China issue in Russia. On February 2nd, 2006, at the 7th Congress of the United Party of the Russian Federation, Lutsyk, Mayor of Moscow, strongly criticized Russia's current foreign economic policy, pointing out that "the Russian Ministry of Economic Affairs belongs to the Russian Federation, not to China", which showed his opposition and mentality to the development of Sino-Russian economic relations to some extent. All these constitute the potential political risk factors of China's investment in Russia, and these factors will naturally lead to the legal risk of China's investment in Russia.
In order to ensure the investment recovery and protect the rights and interests of China investors, China's foreign investment enterprises must set up an operation team with strong adaptability and the ability to compete with the host country with comprehensive advantages. Enterprises must rely on their own strong team to ensure the safety of the whole investment operation process, and finally recover the investment and obtain resources. The weakness of cadres will inevitably bring great risks to the investment of enterprises. In order to achieve this goal, it is necessary to organize and establish an international legal talent team to adapt to the international operation of minerals. Absorb professional legal researchers and lawyers who have foreign language conditions and professional knowledge, can adapt to international cooperation and handle international disputes, and provide various specific legal assistance for the transnational operation of China's energy enterprises, such as legal evaluation of feasible schemes, participation in negotiations, contract review and follow-up services during Russian cooperation.
In order to solve the problem of weak cadre team of overseas investment enterprises, governments at all levels should set up special overseas investment operator institutions to institutionalize the training, management and assessment of overseas investment operators, so as to strengthen the team building of overseas investment enterprises, enhance their adaptability to the host country culture, overcome the habits formed in China, enter the role as soon as possible, carry out their work in an efficient and orderly manner, and have the ability to deal with crises and resolve risks, thus ensuring that the human resources and cadre team of overseas investment projects meet the actual requirements.
Fourth, the lack of risk monitoring mechanism.
The control of overseas investment in China mainly depends on the project approval system, and there is no effective method and monitoring mechanism for post-investment supervision of projects. As a result, the risk treasure of huge investment is often pinned on the personal qualities of the leaders in charge of foreign-operated enterprises and on several reports submitted by them and enterprises every year, which is equivalent to giving up or losing the opportunities and methods for the host country to monitor, control and prevent risks in real time, which is irresponsible to the country as the property owner and the people as taxpayers.
In order to reduce the risk of huge investment in the "extracorporeal" cycle, ensure the safety of foreign investment, prevent the loss of state-owned assets abroad, and standardize overseas business activities, it is necessary for the state to legislate on all foreign investment projects and establish a risk monitoring mechanism. It is necessary to establish a legal risk prevention system from the subject of public law to the subject of private law, including professional legal due diligence and professional legal evaluation in the project demonstration stage, legal tracking service in the project operation stage, and real-time on-site risk monitoring mechanism between China and Russia, so as to realize China's real-time operation in Russia. In the absence of legislation at present, as an emergency measure, a "foreign investment risk monitoring institution" should be set up with the participation of government departments, legal research and consulting institutions and relevant professional intermediaries to conduct comprehensive and long-term legal risk inspection and supervision on projects and projects invested at home and abroad, and timely put forward suggestions and plans for the government to help enterprises operate healthily abroad.