Step 1: Approval by the Development and Reform Commission
(a) the examination and approval authority
1, provisions on project approval authority
According to Article 7 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, overseas investment projects with Chinese investment of US$ 654.38 billion or more shall be approved by the National Development and Reform Commission. Overseas investment projects involving sensitive countries and regions and sensitive industries are approved by the National Development and Reform Commission and are not subject to quota restrictions. Among them, overseas investment projects involving sensitive countries and regions and sensitive industries with Chinese investment of US$ 2 billion or more shall be reported to the State Council for approval by the National Development and Reform Commission.
2. Provisions on project filing authority
According to the provisions of Article 8 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, all overseas investment projects can be filed with the National Development and Reform Commission except the above-mentioned projects that need approval. Among them, overseas investment projects with Chinese investment of USD 300 million or more are filed by the National Development and Reform Commission. Overseas investment projects with Chinese investment of less than US$ 300 million shall be filed by the local development and reform commission.
For overseas investment projects with long preliminary work cycle and large preliminary expenses, such as performance bond, guarantee fee and intermediary service fee, enterprises can apply for approval or record the preliminary expenses of the project.
3. Information Report Confirmation Provisions
According to Article 10 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, for overseas acquisition or bidding projects with Chinese investment of USD 300 million or more, investors shall submit project information reports to the National Development and Reform Commission before carrying out substantive work. After receiving the project information report, the National Development and Reform Commission will issue a confirmation letter within 7 working days for projects that meet the national overseas investment policy.
(two) the project approval or filing procedures
1. Provisions on project approval procedures and time limit
According to Article 11 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, for overseas investment projects that need to be approved by the National Development and Reform Commission, domestic enterprises shall first submit the project application report directly to the local development and reform commission, and the local development and reform commission shall submit the audit opinions to the National Development and Reform Commission.
According to the provisions of Article 16 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, the National Development and Reform Commission shall, within 20 working days from the date of accepting the project application report, complete the approval of overseas investment projects that meet the approval conditions, or submit audit opinions to the State Council for approval. If the approval decision or audit opinion cannot be made within 20 working days, the person in charge of the National Development and Reform Commission will approve the extension 10 working days, and inform the reporting enterprise of the reasons for the extension.
2, about the provisions of the project filing procedures and time limit
According to the provisions of Article 19 and Article 21 of the Measures for the Administration of Approval and Filing of Overseas Investment Projects, local enterprises shall fill in the Application Form for Filing of Overseas Investment Projects and its annexes and submit it directly to the local development and reform commission, which shall submit it to the National Development and Reform Commission. The National Development and Reform Commission shall, within 7 working days from the date of accepting the filing application form, issue a filing notice for overseas investment projects that meet the filing conditions. For overseas investment projects that are not put on record, the National Development and Reform Commission will notify the reporting enterprises in writing and explain the reasons.
Investors shall handle foreign exchange, customs, entry and exit administration and taxation and other related procedures according to law with the approval documents or filing notices.
(3) Other precautions
1. For overseas investment projects that need to be approved or filed by the National Development and Reform Commission, domestic enterprises should obtain the approval document or filing notice issued by the National Development and Reform Commission before signing the final legally binding document; Or it can be clearly stipulated in the signed document that the effective condition is to obtain the approval document or filing notice of the National Development and Reform Commission according to law.
2. Domestic enterprises need to complete relevant formalities within the validity period of the approval documents and filing notices, of which the validity period of the approval documents and filing notices for construction projects is two years, and that for other projects is one year. If the enterprise fails to complete the relevant procedures within the validity period, it shall apply for extending the validity period within 30 working days before the expiration of the validity period, so as to avoid the need to reapply because the project approval document or filing notice is invalid.
(d) Legal liability
1. Legal liability for inaccurate contents of project application report
According to the provisions of Article 28 of the Administrative Measures, investors shall be responsible for the authenticity and legality of the application report for overseas investment projects or the application form for project filing and its attachments. If an investor violates laws and regulations, conceals relevant information or provides false materials during the declaration of overseas investment projects, the National Development and Reform Commission will not accept, approve or put on record; If the approval document or filing notice has been obtained, the National Development and Reform Commission will revoke the approval document or filing notice and give a warning.
2. Legal liability for failing to apply for approval and filing according to law.
According to the provisions of Article 29 of the Administrative Measures, the National Development and Reform Commission will, jointly with relevant departments, order domestic enterprises to stop the implementation of projects that have not been approved or filed according to law, or projects that have not been implemented in accordance with the approval documents or filing notices, and draw or transfer them to relevant authorities to investigate the legal responsibilities of the responsible persons according to law.
3. Legal responsibility for not submitting project information according to law to carry out substantive work.
The National Development and Reform Commission will give informed criticism the investor who submitted the project information report but did not get the confirmation letter of the information report, and order him to make corrections. If it is serious in nature and causes serious damage to the national interests, the National Development and Reform Commission will jointly punish it with the relevant departments according to law, and draw or hand it over to the relevant authorities to investigate the legal responsibility of the responsible person according to law.
Step 2: Examination and approval by the Ministry of Commerce
(a) the provisions of the examination and approval authority
According to the provisions of Article 6 of the Measures for the Administration of Overseas Investment, except for sensitive countries and regions and sensitive industries, the overseas investment of enterprises shall be subject to filing management.
(2) Provisions on examination and approval procedures
(1) filing application
According to Article 9 of the Measures for the Administration of Overseas Investment, the overseas investment of central enterprises shall be reported to the Ministry of Commerce for the record; Local enterprises should file with the local provincial commerce authorities. After investors fill in the overseas investment filing form, they shall submit it to the competent commercial department for filing together with a copy of the business license of the enterprise. The competent department of commerce shall, within 3 working days from the date of receiving the filing form, put it on record and issue a certificate of overseas investment of the enterprise.
(2) Approve the application
According to Article 10 of the Measures for the Administration of Overseas Investment, central enterprises apply to the Ministry of Commerce for approved overseas investment, and local enterprises apply to the Ministry of Commerce through the local provincial commerce authorities. Enterprises applying for overseas investment approval shall submit application forms, overseas investment application forms, contracts or agreements related to overseas investment, and materials approved by relevant departments when exporting products or technologies restricted by China.
(3) Provisions on the time limit for examination and approval
According to the provisions of Articles 11 and 12 of the Measures for the Administration of Overseas Investment, the Ministry of Commerce shall solicit the opinions of Chinese embassies (consulates) (business offices) when approving overseas investment. The Ministry of Commerce shall make a decision on whether to approve or not within 20 working days after accepting the application for approval of the central enterprise (including the time for soliciting the opinions of the Commercial Office). If the application materials are incomplete or do not conform to the statutory form, the Ministry of Commerce shall inform the applicant enterprise of all the contents that need to be supplemented at one time within 3 working days. Fails to inform, since the date of receipt of the application materials is accepted.
After accepting the application for approval of local enterprises, the provincial commerce department shall conduct a preliminary examination of the application, and submit the preliminary examination opinions and all application materials to the Ministry of Commerce within 15 working days (including the time for soliciting opinions from the Commercial Office). If the application materials are incomplete or do not conform to the statutory form, the provincial commerce department shall, within three working days, inform the applicant of all the contents that need to be supplemented. Fails to inform, since the date of receipt of the application materials is accepted. The Ministry of Commerce shall make a decision on whether to approve or not within 15 working days after receiving the preliminary examination opinions of the provincial commerce authorities. For the approved overseas investment, the Ministry of Commerce shall issue a written approval decision and issue the Certificate of Overseas Investment of Enterprises.
(4) Other precautions
According to the Measures for the Administration of Overseas Investment, if a domestic enterprise fails to make overseas investment within 2 years from the date of receiving the Certificate of Overseas Investment of Enterprises, the Certificate of Overseas Investment of Enterprises will automatically become invalid. If overseas investment is needed again, it shall be re-filed or applied for approval.
Step 3: foreign exchange registration
After obtaining the approval or filing documents from the National Development and Reform Commission and the commercial department, foreign exchange registration for overseas investment is required.
20 15 February 3, Notice of the State Administration of Foreign Exchange on Further Simplifying and Perfecting Foreign Exchange Management Policies for Direct Investment (Huifa [2065 438+05] 13) (hereinafter referred to as foreign exchange No. 13) takes effect. 13 document cancelled the administrative examination and approval of foreign exchange registration under overseas direct investment, and banks directly reviewed and handled foreign exchange registration under overseas direct investment in accordance with the Operational Guidelines for Foreign Exchange Business of Direct Investment. Therefore, since June 1 20 15, the foreign exchange bureau is no longer responsible for the foreign exchange registration of overseas investment, but only indirectly supervises the foreign exchange registration of direct investment through banks. Enterprises can choose their own registered banks to handle foreign exchange registration of direct investment. After the enterprise completes the foreign exchange registration of direct investment, it will handle the subsequent business related to direct investment, such as account opening and fund remittance (including the remittance or repatriation of profits and dividends).
Step 4: SASAC approves or puts on record.
If the main body of overseas investment is a state-owned enterprise, it involves the approval or filing of SASAC. According to Article 6 of the Notice of the State Council State-owned Assets Supervision and Administration Commission on Strengthening the Management of Overseas Investment of Central Enterprises, overseas investment projects that belong to the main business of enterprises should be reported to SAAC for filing, and non-main overseas investment projects should be reported to SAAC for review. At the same time, according to Article 10 of the Interim Provisions on the Administration of Equity Investment in Municipal State-owned Enterprises, the cross-border guarantee of overseas equity investment and overseas M&A financing of state-owned enterprises shall be reviewed in accordance with internal decision-making procedures, and after being reviewed by the funded enterprises, the funded enterprises shall report to the Municipal State-owned Assets Supervision and Administration Commission for approval.
To sum up, the handling of overseas investment by enterprises needs approval and filing, and enterprises need to pay attention to many matters. The above is an introduction to the overseas investment knowledge of enterprises. If you have any other questions about overseas investment, please find a lawyer for professional consultation!