On February 25, 2016, the Legislative Affairs Office of China’s State Council published the Draft Amendment of Anti-Unfair Competition Law of the People’s Republic of China (for examination) (hereinafter referred to as the Draft Amendment).
立法动态 Legislative Updates
General Office of the State Council Releases the Opinions on Strengthening the Management of Permanent Residence Service for Foreigners
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.
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.
The NDRC holds, in the Guiding Opinions on Launching Public-Private Partnerships, that the operational methods for the PPP model include concessions, government procurement of services, equity cooperation, etc.
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.
I. What Is Personal Information and What Is Individual Privacy
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 right that protects an individual’s privacy is known as the right to privacy. It is a right of personality that protects the peace of one’s personal life and the private information irrelevant to public interest from illegal harassment, acknowledgement, collection, utilization or publication. The concept of right to privacy was raised by United States attorneys Samuel D. Warren and Louis D. Brandeis (future United States Supreme Court Justice) in their paper entitled The Right to Privacy published in the fourth issue of the Harvard Law Review on December 15th1890. In his dissenting opinion in Olmstead v. United States (1928), Justice Brandeis wrote that a citizen enjoys the “right to be let alone”, which has later been recognized as the classical dissertation on the right to privacy. The case initiated wide discussion among the society in the United States at the time, and generated profound impact on the protection over individual’s privacy.
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 2015/5/19 16:30:08
[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. More…
Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation
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.