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China 's Reform And Opening Up

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As the three FIE Laws were introduced at the start of China’s reform and opening up, they serve as fundamental laws for foreign investment issues in China for almost 40 years. However, because of the rapid and deeper development of China’s economy in recent years, these laws face a number of issues. 1.1. Conflicts with the Company Law Under current relevant laws and regulation, foreign investors have several options to set up their businesses in China. They can establish corporations in the form of EJVs, CJVs or WFOEs under the EJV law, CJV law or WFOE law respectively. In addition, they can set up limited liability companies (“LLC”) under the Company Law as well. Generally, Company Law is focus on regulating domestic enterprises instead …show more content…

These supervisors should be appointed or elected by shareholders and employees. As the FIE laws do not mention this matter, limited liability FIEs like EJVs should also comply with Article 52. However, under the FIE laws, shareholders’ meeting is not regarded as an authoritative body and therefore there is no provision or framework for FIEs to deal with the shareholders’ voting procedures. Although the board of directors, which is the highest authority under the FIE laws, can appoint supervisors, the appointment would be inappropriate and doubtable because supervisors’ responsibility is to supervise those directors . 1.2. Excessive regulation of foreign-invested enterprises According to the current FIE laws, a case-by-case approval system is applied to all FIEs. Obtaining of positive approvals for investment projects from National Development and Reform Commission (“NDRC”) is the first step; Afterwards, approval for establishment should be acquired from MOFCOM; In order to operate the firm, a business license, which is granted by the State Administration of Industry and Commerce (“SAIC”), is required . Approvals are also required on every significant issues such as the transfer of controlled capital or shares, merger and acquisition, liquidation and so on. In the case Qingyue Gao v Shicai Chen , the two foreign parties had signed two contracts in respect of 70% shares transferring from the plaintiff to defendant in 2006. The

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