On September 3, 2016, the Standing Committee of the National People's Congress promulgated the Decision of the Standing Committee of the National People's Congress on Amending Four Laws Including the Law of the People's Republic of China on Wholly Foreign-owned Enterprises (the “Decision”). The Decision provides for record-filing in lieu of administrative approval in the case of foreign invested enterprise establishment and alterations for foreign invested enterprises (“FIEs”) not subject to special administrative measures. On October 8, 2016, the Ministry of Commerce (“MOFCOM”) issued the Interim Measures for Record-filing for the Establishment and Alteration of Foreign-invested Enterprises (the “Interim Measures”). On the same day, MOFCOM and the National Development and Reform Commission (“NDRC”) jointly issued a statement (the “Joint Statement”), which clarified that the special administrative measures to be implemented in this case are the restricted and prohibited industry category provisions as well as encouraged industry categories having shareholding and executive management requirements prescribed in the Catalogue for the Guidance of Foreign Investment Industries (2015 Edition) (the “Catalogue”). The Joint Statement also stated that the relevant provisions currently in force will apply in the case of establishment and alterations resulting from foreign mergers and acquisitions. Based on the foregoing, the Decision-mandated record-filing system now has a clear package of supporting measures, thus making official the implementing of the “pre-access national treatment plus negative list” administrative regime.
