林燊，金杜律师事务所税务主管合伙人
过去实践中，为了绕过中国商务局、税务局等部门的审核监管，境外投资方通常会考虑采用转让设在境外（例如BVI, 香港）的控股公司的股权而达到转让国内企业股权的目的。时过境迁，这种做法现在很有可能会受到中国税务机关的挑战。近日，国家税务总局下发《关于加强非居民企业股权转让所得企业所得税管理的通知》（国税函[2009]698号，简称“698号文”），该文件第一次将间接转让（即前述的转让境外控股公司）以明文规定的形式纳入中国税务审查的范畴。税务机关将审查境外股权结构是否具有合理商业目的，如果没有，那么转让境外股权取得的资本利得仍有可能需要在中国缴税。因此，这将对境外控股公司架构及境外并购重组交易产生重大影响。
By Mark Schaub, Partner, Corporate, King & Wood – Shanghai
Three consumer credit companies have obtained regulatory approval for their establishment from the China Banking Regulatory commission (CBRC). The main shareholder in each of these consumer credit companies are domestic banks namely Bank of China (BOC), Bank of Beijing and Bank of Chengdu.
Continue Reading Days of Easy Credit Dawning? Consumer Credit Companies Arrive in China
By Kenneth Choy, Partner, Intellectual Property, King & Wood – Hong Kong
Last month, the United States Supreme Court heard oral arguments in the closely followed case of Bilski v. Kappos, 08-964. The case concerns a patent application for hedging risk in commodities trading. Both the U.S. Patent and Trademark Office and the United States Court of Appeals for the Federal Circuit rejected the claims. In reaching its decision, the Federal Circuit ruled that to be eligible for a patent, a process claim must be tied to a particular machine or it must transform an article into a different state or thing. The court said that this ‘machine or transformation’ test is the only test for determining patent eligibility of process claims.
Continue Reading Bilski v. Kappos, the end of the ‘Machine or Transformation Test’?
By Zhang Yi, Partner, & Alan Du, Counsel, Corporate Group, Shanghai
The Administrative Measures for Establishment of Partnership Enterprises in China by Foreign Enterprises or Individuals (the “Measures”) was issued by State Council on 2 December 2009. The Measures, effective from 1 March 2010, will allow foreign investors to directly act as partners of partnerships in China.
Continue Reading Measures for Foreign Invested Partnerships Issued: Has the Door Opened?
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。
By Stephen Nelson, Partner and Head of King & Wood’s Taxation Practice
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. The SAT’s “Notice on Interpretation and Determination of Beneficial Owner under Tax Treaties” (Guoshuihan [2009] No. 601, or “Circular 601”), directs local tax authorities to investigate whether an applicant satisfies the requirements to qualify as a beneficial owner, which is a pre-requisite to enjoy the benefit of a reduced withholding tax on dividends, interest, royalties or capital gains under a double tax arrangement.
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 Group
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 Group
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 team
Continue Reading Resolving International Disputes in Outbound Investment