Rio Tinto 18% equity "breach of contract case" and "Ping An-Fortis case" which paid15.7 billion US dollars in expensive tuition fees in 2009 are the most typical and representative. Tracing back to the reasons for the failure of these "three models",
Although there are many factors, the author believes that their failure is closely related to the lack of legal awareness of overseas investment in China and the lack of legal awareness of specific operators. In this regard, this article will focus on
In order to find out the crux of the problem and put forward new thinking strategies, some in-depth exploration and research are carried out in these aspects, so that Chinese enterprises can learn from the past, take the road of overseas investment in the future and make greater contributions to the prosperity of the country.
Great contribution.
Legal Issues Reflected by "Three Typical Cases" of Overseas Investment
CNOOC actually bought a "bankruptcy case" and Chinalco bought a "default case" and went to sea safely.
The reason why the "water choking case" is named as "three typical cases" by experts and scholars in the industry is not only because they dare to "go out" on behalf of the country and "eat big crabs" overseas, but also because they
Through overseas "bottoming out", we have found thorns and "gullies" on the way forward for ourselves and our domestic counterparts. Although they have a record of failure, failure is the mother of success, especially in their international investment related to law.
The lesson has erected a "specimen warning wall" with great reference significance for more success.
"Three Typical Cases": "Ping An-Fortis Case" has a great influence on China's overseas investment.
The occurrence of "three typical cases", if purely economic, can really be said to be a heavy loss and heartbreaking. However, to find its positive significance, it is a great opportunity for China enterprises that have set foot in or intend to set foot in overseas investment.
This is a good textbook. People can not only sum up experience and get a lot of useful help from it, but also learn from it and avoid taking many detours. At the same time, these "three typical cases" are correspondingly.
Touched the nerve endings of the country and urged the government to pay more attention to it. This fully shows that the "three typical cases" still have great influence on China's overseas investment.
-At the national level, the government pays more attention to it. Mainly reflected in the following aspects: First, take the "going out" strategy of China enterprises as a national policy, and further improve various management systems. Formulated for accelerating development under the new situation.
The policies and measures to implement the "going out" strategy have promulgated the Measures for the Administration of Overseas Investment, the Regulations on the Administration of Foreign Contracted Projects and the Measures for the Administration of Foreign Contracted Projects. The second is to strengthen macro planning.
Guide and implement various support policies. Prepare the Twelfth Five-Year Development Plan for foreign investment cooperation, formulate medium-and long-term development plans for key countries and industries, and sign medium-and long-term development plans for economic and trade cooperation with relevant countries; Regularly publish
Guidance documents such as Catalogue of National Industries for Foreign Investment and Catalogue of National Industries for Foreign Contracted Projects; Improve the foreign exchange management of overseas direct investment and encourage financial institutions to provide credit support and financial services for cooperative projects.
Service. The third is to promote services and provide protection of overseas rights and interests. Enhance the transparency of public service functions and policy information, and issue country (region) guides for foreign investment cooperation and country trade and investment environment reports.
Report on obstacles of country investment management, and improve the information service system of foreign investment cooperation. Strengthen communication and cooperation between governments, negotiate and sign bilateral investment protection agreements, free trade zone agreements and intergovernmental infrastructure and labor cooperation agreements. guide
Enterprises should set up overseas chambers of commerce of Chinese-funded enterprises in countries and regions where Chinese-funded enterprises are relatively concentrated to improve the level of industry self-discipline. Establish an overseas security system, formulate and promulgate the Regulations on the Safety Management of Institutions and Personnel of Overseas Chinese-funded Enterprises,
Establish an overseas security risk early warning and information notification system for foreign investment cooperation. According to the Report on the Development of Foreign Investment Cooperation 20 10 and the Guide to Foreign Investment Cooperation, China has signed bilateral investment protection with 130 countries.
Agreement. At the same time, the protection agreement concluded in the last century is being revised.
-At the main level, China enterprises are more enthusiastic about overseas investment. Take the energy enterprises in China as an example, Zhong Shi.
Petroleum, Sinopec and CNOOC themselves have earnestly learned the lessons of CNOOC's failure to acquire Unocal in the United States in 2005. In July 2009, Sinopec acquired Addax for $7.23 billion.
, PetroChina shares in Singapore Petroleum Company, and PetroChina acquires Norwegian Drilling Company. In the same month, PetroChina and CNOOC also held talks on the joint acquisition of YPF, a subsidiary of Spanish oil giant Respol YPF in Argentina.
SA shares, amounting to $654.38+07 billion. Petrochina also intends to buy oil fields owned by Ori2noco in Venezuela. China Oil Company also makes direct investment through local governments in some countries.
Obtain exploration rights and oil exploration rights, such as Nigeria, Iran, Algeria, Angola, Sudan and other places. At the same time, it urged the China government to sign loans to exchange stones with Russian, Brazilian, Kazakh, Venezuelan and other countries.
Oil agreement, the loan amount exceeds 20 billion US dollars. Subsequently, China's coal enterprises also began to set foot in overseas investment. In June 2009, Yanzhou Coal Company acquired Felix, an Australian coal company, for $3.2 billion.
Resources. Within 10 months after the outbreak of the financial crisis, Chinese enterprises issued 50 large M&A offers with a total amount of $50 billion and $30 million respectively, of which 2/3.
Focus on mining and energy. A series of big moves of China enterprises' foreign investment fully show that since 2008,
Since then, the upsurge of overseas investment by Chinese-funded enterprises has not been reduced because of "three typical cases", but has the potential to start a prairie fire. In 2009, China's overseas acquisitions were second only to German, with a total amount of $265.438+800 million. eye
Previously, China has developed into the fourth largest investor after Britain, the United States and Japan.
-From a legal perspective, the pace of national legislation has been further accelerated. (1) According to China
The development of overseas investment has accelerated the pace of formulating the Overseas Direct Investment Law. This law was formulated by the National People's Congress Standing Committee (NPCSC), including: the principles of overseas direct investment, the management system of overseas direct investment,
The scope and form of overseas direct investment, as well as the legal liability provisions for overseas investment, have formed China's overseas direct investment laws and regulations with the Basic Law on Overseas Direct Investment as the main body and various separate laws and institutions as supplements.
Legal system of capital. (2) Establish specialized agencies to manage overseas investment. Led by Ministry of Commerce, State Administration of Foreign Exchange, State-owned Assets Administration, National Development and Reform Commission, People's Bank of China, State Taxation Administration of The People's Republic of China and General Administration of Customs.
The Ministry and other ministries * * * sent personnel to form the China Overseas Direct Investment Management Committee to make macro-coordination and planning for overseas direct investment, which completely reversed the previous situation of lack of coordination among departments and unclear boundaries between powers and responsibilities.
noodle (3) Further improve the supervision mechanism of overseas investment enterprises. Strictly stipulate the risk investment limit and investment qualification evaluation system of overseas investment enterprises; Strengthen the follow-up management of overseas enterprises and strengthen taxation, foreign exchange and finance.
Supervision of service system; For overseas investment projects of state-owned assets, the main system of investment responsibility and the legal person system of investment projects are adopted, that is, the principle of "whoever invests is responsible"; At the same time, overseas enterprises of private investors should be brought into politics.
The scope of government supervision shall be subject to the approval or filing of government departments to prevent the loss of assets abroad. (4) Establish an overseas direct investment insurance system. This system focuses on qualified investors, qualified investments, insurance coverage and qualified hosts.
China and the right of subrogation are clearly defined, especially for qualified host countries, which should not be limited to developing countries, but can completely cover developed countries that have investment dealings with China. But also on the scope of insurance, the nature of investment itself, insurance
The insurance amount, insurance premium and other contents have also made provisions suitable for the characteristics of China's overseas direct investment, making it conform to both international practice and China's national conditions.
-From the perspective of effect, the pace of foreign investment
Speed, the benefits are more significant.
First, the growth rate has accelerated and the overall scale has expanded. From 2006 to 2009, foreign direct investment increased from $265,438+010.60 billion to $56.53 billion, with an average annual growth rate of 38.8%.
Foreign direct investment 160 1. 1 100 million USD. By the end of 2009, the stock reached US$ 245.75 billion, ranking 15 in the world and third in developing countries/regions, widely distributed in 177 countries and
The total overseas assets of 65,438+3,000 overseas enterprises in the region totaled 1. 1 trillion US dollars, and gradually became an important capital exporter in the world. Second, the ways are increasingly diverse and the fields are constantly expanding. Foreign investment cooperation is established by a single project
With the gradual development of regionalization and clustering mode, a number of overseas economic and trade cooperation zones have begun to take shape. From 2006 to 2009, non-financial cross-border M&A investment grew at an average annual rate of 35.7%. M&A in 2009
The investment accounted for 40.4% of the total foreign investment in that year. Foreign contracted projects have changed from quantitative scale to quality and efficiency, and the franchise mode dominated by investment and financing has gradually increased. Third, the level has been continuously improved and the main strength has continued.
Continue to strengthen. The proportion of foreign contracted projects such as Sinopec, rail transit, electric power and electronic communication has risen to about 60% of the newly signed contract value, further promoting the export and profit level. The number of projects with hundreds of millions of dollars has gone from
The number of enterprises in China increased from 94 in 2006 to 240 in 2009, and the largest project contract value increased to 7.5 billion US dollars. In 2009, 34 enterprises were selected into the world's top 500, and 54 foreign contracted engineering enterprises in China.
The company has entered the ranks of 225 international contractors in the world, and the total business volume of overseas projects accounted for 65,438+03.2% of the total business volume of the top 225, ranking first for the first time.
There are still many insurmountable obstacles to the development of China's overseas investment strategy
International investment is most concerned about the national sovereign interests, which can be clearly recognized from the "three typical cases". Why CNOOC failed to bid for Unocal? Because this transaction touches the sovereign interests of the United States. China aluminum
Why did the acquisition of Rio Tinto fail? It is also because this transaction touches the sovereign interests of Australian countries. Why did China Ping An Investment Fortis finally die? It is also because this transaction touches two countries, the Netherlands and Belgium.
The highest interest of. It can be seen that national sovereign interests should be the first insurmountable obstacle in the field of international investment.
In fact, the principle of national sovereignty in international investment law is about the owner of the country.
Equity. The national sovereign interest itself also includes the national economic sovereign interest, which can be embodied in the resource sovereign interest, that is, the state enjoys the possession, use and disposal of all natural resources in its territory.
The power of. Among the foreign investment access and supervision systems that embody economic sovereignty, the resource industry has the highest access threshold and the strictest supervision. In particular, the sovereignty over energy in resource sovereignty has always been influenced by energy in developing countries.
The country of origin is the foundation of the country. Many developing countries have not opened up the energy sector in order to leave energy wealth for future generations. Although some developing countries are open, they have strict examination and approval systems. Some developing countries stipulate overseas.
Enterprises can only intervene in the energy field in the form of joint ventures, while investing in the host country only needs to grant exploration and mining rights in the form of shares. China needs a lot of resources now, instead of sticking to China's own resources. Go abroad to invest in the sea.
Foreign resource enterprises, or their own acquisition of overseas resources exploration and development rights, are easily misunderstood by the host country as infringing on their economic sovereign interests or resource sovereign interests. Therefore, its host country must take corresponding measures.
Or take extreme measures to resist or obstruct, there is no doubt about it.
The second insurmountable obstacle is the legal obstacle. Talking from "Three Typical Cases" of China's Overseas Resource Investment Failure
It is not difficult to see that the host countries are highly wary of foreign capital entering the field of economic and people's livelihood development, especially in this financial tsunami, some host countries have repeatedly increased their involvement on the grounds of safeguarding their own security interests.
The threshold of entering China's resource industry will shut out China enterprises. As far as China is concerned, resources play a leading role in the national economic development, so for overseas investment, resources certainly play a leading role. no
However, China has also established a strict examination and approval system for foreign investment in domestic resource industries, and there are also many restrictions on its investment projects and business forms. For example, Article 6 of the Provisions on Guiding the Direction of Foreign Investment is aimed at restrictions other than this kind.
Provisions on commercial investment projects. However, the legislation on overseas resource investment is very pale, and there is no unified and complete overseas investment laws and regulations in China at present. The existing overseas investment legislation mainly
There are: 198 1 Interim Provisions on the Establishment of Joint Ventures Abroad issued by the former Ministry of Foreign Economic Relations and Trade; 1989, "overseas trade, gold"
Interim Measures for Financial Management of Financial and Insurance Enterprises; Interim Measures for Financial Management of Overseas Investment promulgated by the Ministry of Finance1995; 1996
Regulations on Foreign Exchange Control in People's Republic of China (PRC) issued by the State Council in; 2009
Measures for the Administration of Overseas Investment, etc. The biggest defect of these laws and regulations is the lack of systematicness and stability, which is not conducive to the grasp and compliance of overseas investment enterprises, nor to the supervision and protection of the state. At the same time, today's domestic also
There is no written law on overseas investment insurance, which makes domestic enterprises have doubts about investing overseas. Even if you invest abroad, the interests will not be relieved if you fail, and the development will naturally slow down.
The third insurmountable obstacle for China enterprises to invest overseas is the obstacle of investment subject or investment strategy. As the main body of overseas resource investment, large state-owned enterprises have strong economic strength.
At the bottom, but they want to invest or buy resources overseas, but their intentions are easily misunderstood by the host country, linking their actions with those of the country, making the host country rebel and giving them overseas.
Investment behavior caused by obstacles. Taking the oil resources as an example, from 1998, China implemented state monopoly on the oil industry, and granted the right to operate the oil industry at home and abroad to China III through franchising.
Oil company. It is impossible for private enterprises to set foot in the field of oil resources, and it is also difficult to invest in foreign oil resources overseas. Based on this, the state should protect the dominant position of large state-owned enterprises and supplement
Vigorously encourage and support private enterprises and medium-sized state-owned enterprises to enter this field. At the same time, China must have a strategy of investing resources overseas. "Overseas bargain hunting" can only reveal China's urgent demand for resources.
The failure of "three typical cases" lies in being too eager for quick success and instant benefit, and the specific operation is also lack of strict science. In addition, some overseas investment enterprises still have the phenomenon of "two accounts", and the external accounts are audited by the host country.
The internal accounts truly record the operation of the company. Although this has avoided some local tariffs, it has offended the legal system of the host country and set up an artificial barrier for China enterprises overseas.
The fourth insurmountable obstacle is the obstacle of investment environment and political risk. First, environmental barriers. In 2 1 century, the world pays attention to environmental problems. When China enterprises invest in resources overseas, they will inevitably face international environmental laws.
And domestic environmental protection laws. Various international environmental protection groups, environmental protection government agencies and organizations in the host country and local people are very concerned about the impact of foreign investment on the environment, even rising to
The height of the right to subsistence and human rights. In this regard, there are many environmental conflicts in the overseas investment of China enterprises, which have had a very bad impact on China's overseas investment. Some developed countries even call China investors new investors.
Colonialism took the opportunity to provoke relations between China and some African developing countries, and deliberately created troubles for China enterprises to invest in overseas resources with environmental protection issues. At the same time, from the physical phenomenon of resource development, mineral resources
The development of the source will transform the original landform and natural ecology, which may lead to geological disasters and even environmental pollution; The development of oil and gas resources is accompanied by the risk of blowout or fire accident, and the oil leakage pollution is great.
Air pollution and the destruction of the original ecology can easily lead to the intervention of the host country or international human rights and environmental protection groups. Followed by political obstacles. China has many overseas projects, especially oil and gas projects and iron.
Mining projects are mostly concentrated in African countries, and these countries are backward in economy, poor in people and political turmoil, which makes China enterprises often face dangers and the personal safety of employees is threatened. Such as the Sultanate. This is a western country.
It was rated as the most failed and turbulent country in the world, but this country prospered because of the investment of PetroChina. However, the employees of PetroChina's joint venture in Sudan have been kidnapped from time to time. 2008
On June+10, 65438, nine engineers and workers were kidnapped, and four of them were killed. China Oil Company's investments in Niger, Iraqi Kurdistan, Nigeria and other countries and regions also have similar risks.
Thoughts and Suggestions on the Legal Countermeasures for China Enterprises to "Go Global" and Develop Overseas Investment
In view of the profound lessons of "three typical cases" and the legal problems reflected by "three typical cases", the author puts forward the following suggestions or ideas on the countermeasures and strategies for overseas investment of China enterprises.
First of all,
It is necessary to further revise and improve foreign-related laws and regulations, so that China enterprises can have laws and rules to follow in their overseas investment. At present, what our country lacks most is a set of laws and regulations that are in line with international standards. golden
After the financial crisis, with the acceleration of the globalization of the world economy, it is particularly important to adjust and standardize the laws and behaviors of China's overseas investment. On this issue, we must give full consideration to the resources of western developed countries and Africa.
China and politically unstable countries and other foreign unfavorable factors that affect the development of China's overseas investment, at the same time, we should also learn from the legal reality of the countries involved and consider the ideology, social system and cultural inheritance of China and western countries
The institutional differences make China's laws and regulations on foreign investment more forward-looking and internationally applicable. For example, how to embody the principles of national sovereignty, economic sovereignty and resource sovereignty in the law should be clarified again.
Definition. If we continue to adhere to the original position of economic sovereignty and resource sovereignty, it is obviously contrary to the requirement of maximizing China's national interests, and it will also endanger the security and stability of overseas investment. China's top leaders have repeatedly stressed that.
The emphasis on "investment liberalization" in some international occasions is actually a practical reflection of the changes in China's basic position in the field of foreign investment in the future. The formulation of national foreign-related laws and regulations should also respond to this change, so as to be more in line with international reality.
Internationalization promotes the healthy development of China's foreign investment.
Second, we should further improve the encouraging policies and measures to support and promote the development of overseas investment. China's current loan policies and regulations, foreign capital
There are some preferential measures in foreign exchange income, income tax and customs duties, but they are not perfect. We need to do more work in these areas: 1. Establish special government agencies or entrust academic groups to strengthen international cooperation.
To study and demonstrate the relevant laws, administrative procedures, resource conditions, market characteristics and investment behaviors of countries investing in China, especially China, to provide information consultation and technical services for investors, and to ensure that the state and investment enterprises
Industry decision-making is scientific and correct, and try not to take detours. 2. Improve the insurance mechanism for overseas investment. In recent years, the focus of China's overseas investment is basically developing countries. However, the legal construction and investment environment in developing countries are relative.
Generally speaking, armed conflicts and riots sometimes occur in some countries, which always bring unexpected threats and unexpected losses to overseas investors. Therefore, it is necessary to take the national overseas investment insurance mechanism as the guarantee. but
China's existing overseas insurance is mainly to safeguard the interests of state-owned assets, and needs to be further tilted and strengthened for the safety of private enterprises and individuals. 3. Increase credit and tax support. Overseas investment of China enterprises, 1
A prominent problem is that overseas investment enterprises are small in scale and low in competitiveness, so they need to be given more and more preferential credit and financial support in this respect, and at the same time, they need to be given more and more tax concessions, especially income tax.
Support and help enterprises to continuously improve their international competitiveness. 4, support and encourage large enterprises to take the road of integrators, joint a number of asset management ability, industrial investment ability, product gradient transfer ability, project contracting and
Enterprises with strength and ability to undertake projects should integrate advantageous industries, advantageous enterprises and advantageous capital to form a group of "going out" international integrators with strong comprehensive strength and obvious brand advantages, with large enterprise groups or comprehensive
Trading companies and other forms to enter the international market, showing the strength and courage of China enterprises to enter overseas.
Third, we should further strengthen the supervision and guidance of overseas investment enterprises. The main body of China's overseas investment
It is a large and medium-sized state-owned enterprise. As the main body of ownership, the state must strengthen the supervision and management of overseas investment of state-owned assets, which is the key to ensuring national interests. In addition, as a social manager, the state should also consider overseas investment.
The impact of capital on the country's foreign exchange balance and fiscal revenue, so strengthening foreign exchange management and tax payment supervision of overseas investment must also keep up. Relevant state departments should issue some guidance documents regularly or timely to make overseas investments.
Give guidance to help enterprises make correct decisions. For example, we need to strengthen macro-control in the choice of investment fields and the distribution of overseas investment locations. At the same time, it is necessary to speed up the construction of multinational companies in China and reward the country.
There are large companies and enterprise groups, and they have the right to operate their own funds, assets and resources, including the right to operate foreign trade, the right to invest abroad and the right to raise funds overseas. It is comparable to actively promote and support them through this series of decentralization of business autonomy.
Advantages, in line with national industrial policies and the overall interests of transnational operations. In addition, it is necessary to strengthen personnel training and continuously send multinational companies with strategic mind, modern enterprise management and international marketing to overseas investment enterprises.
The high-end talents in the "manager class" will push the overall level of the country's overseas investment to the international first-class.
Fourth, we should further deal with the legal risks brought about by the political turmoil in the host country. Look at it.
Previously, China's overseas investment had reached 180 in more than 80 countries and regions, most of which were developing countries. In these countries, China enterprises mostly adopt western-style acquisitions or mergers and acquisitions.
Investment. This kind of investment, whether in sensitive areas of political turmoil or not, can be solved by the existing legal framework model of international investment, so the legal risk is relatively small. But if it is in national politics,
Once something goes wrong, the legal risk of investment in the form of state contracts reached under the government background will be "sky-high". If we expect this model to solve the problem, I am afraid it is difficult to deal with it, and the country needs to fight a "diplomatic war."
Yes It is domestic law that plays a decisive role in solving problems. Moreover, China has traditional friendly relations with these countries, and diplomatic channels are relatively smooth. This is also the reason why China enterprises can be in these countries and
Reasons for the development of regional investment. However, once the political situation in these countries changes, such as anti-government forces seizing power or pro-Western regimes, the legal risks should not be underestimated. Therefore, the government of China should be here.
Face must be a strong backing for overseas investment enterprises to resist the political risks of the host country. In this regard, it is necessary not only to further improve the system of bilateral investment protection agreements, but also to create a good international business environment for overseas investment enterprises.
Gradually strengthen friendly relations with investment host countries and strive for more treatment and legal relief for overseas investment enterprises. At critical times, we should also provide strong diplomatic protection for overseas investment enterprises and effectively protect them.
The legitimate rights and interests of China enterprises investing overseas and all other normal interests should be protected. In this way, China's overseas investment enterprises will "put their minds at ease" and earn extra money and big money for the motherland and people abroad.
Great contribution.