The overseas investment review process is mainly divided into: internal decision-declaration by the National Development and Reform Commission and the Ministry of Commerce-declaration by the foreign exchange administration, and the division of responsibilities of each department is as follows:
note:
Overseas investment is divided into: approval system and filing system;
(1) Approval System:
Applicable conditions: the overseas investment of enterprises involves sensitive countries and regions and sensitive industries;
Examination and approval authorities: National Development and Reform Commission and Ministry of Commerce.
(2) filing system:
Applicable conditions: investment projects outside the examination and approval system;
Filing organs: state organs and local organs (division of labor);
Specific division of labor: Development and Reform Commission (the National Development and Reform Commission is responsible for filing overseas investment projects of central enterprises, including financial enterprises managed by the central government, enterprises managed by institutions directly under the State Council or the State Council, and local enterprises, but the Chinese investment is more than US$ 300 million, and the local development and reform commission is responsible for filing investment projects of local enterprises below US$ 300 million); Department in charge of commerce (the Ministry of Commerce is responsible for the filing of central enterprises, and the local commerce commission is responsible for the filing of local enterprises).
Two. Key points of ODI declaration for overseas investment (NDRC and Ministry of Commerce)
The National Development and Reform Commission and the Ministry of Commerce have different requirements for overseas investment declaration. This article will explain them separately. See below for details.
2- 1 NDRC declaration point
The National Development and Reform Commission issued a document defining "overseas investment activities": it refers to the investment activities in which China people and domestic enterprises (hereinafter referred to as "investors") obtain overseas ownership, control, management and other related rights directly or through overseas enterprises under their control by investing in assets, rights and interests or providing financing guarantees.
The definition of the investor by the Ministry of Commerce and the National Development and Reform Commission covers the actual treatment of the partnership:
In the past, the Ministry of Commerce and the Provincial Department of Commerce basically refused to accept the filing applications submitted by partnership enterprises, but the actual situation still needed to consult the specific agencies at that time;
Although the definition of investment by the two departments includes "acquiring enterprise ownership, control, management and other related rights and interests", the status of minority shareholders is unknown in theory, but in practice, minority shareholders who own more than 10% of shares in overseas companies still fall within the scope of the two departments' norms.
In practice, it is difficult to pass the approval/filing: the mother is young (that is, the net assets of the domestic ODI entity are lower than the overseas investment application quota), there are no real overseas investment projects, and the local overseas investment quota has been used up in the current year (the hidden rules need to be confirmed with relevant departments before handling).