林燊，金杜律师事务所税务主管合伙人
中国政府对境外控股公司的反避税管理又向前迈进了一步。国家税务总局日前下发文件，即《关于如何理解和认定税收协定中”受益所有人”的通知》（国税函[2009]601号，简称“601号文”），指导地方税务机关调查认定申请人是否满足“受益所有人”的条件，以决定申请人能否享受税收协定中有关股息、利息、特许权使用费、财产转让收益等优惠待遇。该文件的发布引起广泛关注，跨境交易的税务筹划及利用境外控股公司享受税收协定优惠的安排将受到很大限制。Continue Reading 新一轮境外控股公司反避税风暴
China’s crack down on tax anti-avoidance took another major step forward with the release of a new Circular by the SAT which may severely restrict the ability of offshore holding companies to take advantage of tax treaty benefits.
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Continue Reading China Launches Latest Attack on Offshore Holding Companies
In patent prosecution, an examiner often mentions the term "common knowledge" when evaluating a step forward in an invention, as one cannot patent common knowledge. Common knowledge in the IP sense is generally a fact known or ought to be known to one skilled in the art and can be applied by such a person to solve specific technical problems. Common knowledge can also be a technical means that is most likely to be considered and applied by one skilled in the relevant technical field when working on solutions to specific technical problems. As China’s Guidelines for Patent Examination (the "Guidelines") do not provide a clear definition for "common knowledge", the examiner and the applicant or the applicant’s attorney often disagree on what is common knowledge in a particular patent dispute.
By Chen Wei, Partner at King & Wood’s Intellectual Property GroupContinue Reading Common Knowledge in Patent Prosecution
The People’s Government of Shanghai Pudong New Area promulgated on June 2, 2009, the Pilot Measures for the Establishment of Foreign-invested Equity Investment Management Enterprises in the Pudong New Area of Shanghai ("Pilot Measures"). The Pilot Measures provide guidance on registration and incorporation of equity investment management companies in Pudong New Area to be established by foreign equity investment capital firm including private equity investment and venture capital.
By Zhang Yi, Partner at King & Wood’s Corporate GroupContinue Reading New Regulation for the Shanghai Pudong New Area Establishment of Foreign-Invested Equity Investment Management Enterprises
By Xu Jing, Partner at King & Wood’s Intellectual Property Group
Malicious litigation is broadly thought to be using a legal right to litigate to protect an interest when no substantive right has been violated. Currently, Chinese law does not provide any specific provisions on how to determine whether a party has abused its right to litigate, nor does the law define the concept of malicious litigation. Moreover, Chinese law does not provide specific remedies for a victim of malicious litigation to repair the damages suffered from a malicious litigation.Continue Reading Counter-Suit for Damages Actions in Malicious Litigation
Chinese outbound investment has grown rapidly in the last few years, particularly in the energy, mining, banking, IT and creative industries. On August 18, 2009 China Petroleum & Chemical Corporation (Sinopec) announced the USD 7.2 billion acquisition of the Swiss Addax Petroleum Corporation. This was the largest international acquisition by a Chinese company to date. Additionally, CNPC has made several large international acquisitions – for example, in May, 2009, CNPC acquired a 45% stake in Singapore Petroleum for USD 1.2 billion while companies such as China Minmetals, China Nonferrous Metals, Baosteel, and ICBC have also made significant outbound investments recently. With the increasing internationalization of Chinese companies, commercial disputes are almost inevitable. In our experience, when dealing with international arbitration and litigation proceedings, we see Chinese companies employing a number of different strategies:
By King & Wood’s Cross Border Dispute Resolution teamContinue Reading Resolving International Disputes in Outbound Investment
Emissions trading refers to a mechanism for trading legal emissions rights as commodities with the aim of controlling the overall emission of pollutants into the environment and optimizing the allocation of emissions quotas. As a concept, emissions rights trading dates back over thirty years. However, it was not until the advent of the Kyoto Protocol which became effective in 2005, that the international community established the “Clean Development Mechanism” (“CDM”), a global emissions reduction regime. Under this mechanism, every developed country is required to commit to a certain amount of emissions reduction by a specified deadline. Those countries which generate more emissions than their certified emission reduction (“CER”) may purchase CER credits from the countries which have unused CER credits or which are not subject to emissions reduction commitments. In other words, enterprises in different countries may buy and sell rights to emit carbon dioxide by means of climate exchanges in a similar manner as they would trade stocks in stock exchanges.
By Xu Ping, Partner, FDIContinue Reading Establishment of the Tianjin Climate Exchange
Apart from judgments dealing with divorce and custodial issues, only a small number of published cases have been identified involving attempts to enforce monetary judgments entered in China in U.S. courts. A recent decision from the Central District of California is a landmark in the recognition of Chinese decisions.
By Ge Yan, Partner, Cross Border Dispute Resolution
A Chinese company’s top executive is usually the company’s legal representative, and he or she is legally entrusted with the company seal, which is the company’s official symbol. The company seal provides the legal capacity to make and execute agreements, provide guarantees, transfer assets, and legally bind the company. When a legal representative is replaced, the displaced legal representative must return the company seal to the company so that the new legal representative can represent the company. However, if the displaced legal representative refuses to return the seal, the company could be liable for all the agreements that the former legal representative binds the company to. In other words, even if the articles of association can be used to remove an executive it does not necessarily mean that the foreign investors have been able to regain control of the company in practice. Therefore, retrieving the terminated legal representative’s unlawfully held company seal is an important step toward the foreign investors recapturing control of the company.
By Zhang Shouzhi, Xu Xiaodan and Li Xiang, King & Wood’s Cross-Border Dispute Resolution Practice, BeijingContinue Reading Battle for the Company Seal
China’s rapid economic development and its emerging middle class allow franchises to operate in China under the following model:
The franchisor
• owns a well-known brand with a global reputation;
• has a strong desire to expand its brand in China;
• currently lacks sufficient capital and the traditional franchising model is no longer suitable to support such expansion.
The franchisee:
• has a well-developed distribution network;
• already owns second-line brands for the same or similar products which have already established certain market share in China;
• has ready capital and other operational resources.
By Cecilia Lou, Partner at King & Wood’s Intellectual Property Group