By Cecilia Lou and Vincent Yu King&WoodMallesons’ Corporate Group

Merchandizing the image of TV or movie character has become a common practice since long ago. Right owners not only use merchandizing as a way of publicity but also benefit from the sales of merchandise. In China, laws are silent on right to merchandize. Nevertheless, right owners can still harness the existing IP and civil rights regime to establish merchandise agreements for purposes of collecting royalty and enhance publicity. This article provides some of the key pointers in crafting the merchandise agreements.

LICENSOR

Licensors need to double confirm whether they have right to enter into the merchandise agreements. Licensors can be copyright owner, trademark owner, design patent owner, or a licensee of the right owners. In the last scenario, it is advised for licensor to obtain a license to sublicense and enforce the right. For example, a movie studio may need to get a license from the actor to explore actor’s image in the movie. Also, overseas right owners may need to grant a merchandise right to the distributor or agent in China. In all, licensors should avoid situation where their right to dispose or license is limited.
Continue Reading Key pointers in drafting a merchandizing agreement in China

By Jack Wang, Chen Yun  King & Wood Mallesons’ Banking Regulation & Compliance Group

In the midst of its rapid economic development, the People’s Republic of China (PRC), the second largest economy and the largest trading nation in the world, has finally determined to change its domestic currency market, which used to be pretty much closed to foreign investors over a long period of time and accordingly, promulgated a series of laws and regulations to ease the previously tight foreign exchange (FX) control in the mainland. These laws and regulations were put in place to propel the internationalisation of Chinese Renminbi (RMB) by expanding the use of RMB under both current and capital accounts for the purpose of ultimately achieving an international status for the RMB matching the economic status of the PRC in the global economy. This chapter endeavours to outline a legislative landscape of RMB internationalisation from the following main aspects:
Continue Reading The PRC Legislative Landscape for RMB Internationalisation

By Xiong Jin, Feng Caihong, Liu Qing and Wei Kao  King and Wood Mallesons’ Mergers & Acquisitions Group

On November 19, 2012, the State Administration of Foreign Exchange (“SAFE”) promulgated the Circular Regarding Further Improvement and Adjustment of Policies on Foreign Exchange Administration of Direct Investment (Hui Fa [2002] No. 59, the “Circular”) which aims to dramatically simplify foreign exchange administration procedures concerning inbound and outbound direct investment. The Circular is a response to a directive to reduce administrative approvals in the Decision of the State Council on the Sixth Abolishment and Adjustment of Administrative Examination and Approval Projects (Guo Fa [2012] No. 52) promulgated by the State Council on 23 September 2012, and it also reflects a trend of relaxing foreign exchange supervision given China’s accumulation of major foreign exchange reserves. The Circular will be become effective on December 17, 2012 and is expected to have a significant impact on foreign direct investment and outbound investment by domestic enterprises.
Continue Reading SAFE Issues New Rules to Further Relax the Foreign Exchange Controls over Direct Investment

By Liu Zhigang King & Wood Mallesons’ Finance Group

The history of Project Finance in China is not long, but it is rich. In the earliest days, Project Finance was used mainly in power plant deals, then later extended to water plant deals and petrochemical projects. At that time, Chinese sponsors were short of funds and experience, and Chinese banks were short of foreign exchange and caught up in bad loans. Furthermore, China’s infrastructure base was very weak, and the production capability of Chinese entities was also unreliable. Therefore, the lenders in the Project Finance market were mainly foreign banks, and the loans included commercial loans, export credit, and soft loans. The loans were used mainly to import the machinery and equipment produced by the foreign producers. As well as the collateral on all project assets, the lenders also requested and were able to obtain sponsors’ guaranties and even governmental guaranties for almost every project, although such arrangements are not typical under the project finance model.
Continue Reading Development of Project Finance Deals in China and with Chinese Banks

作者:刘志刚 金杜律师事务所融资

项目融资在中国的历史不是很久,它是一个舶来品,但迄今已经积累了很多的实践。在最初始的阶段,项目融资模式主要用于火电厂的建设,之后才扩展至水厂、化工项目,等等。在那个时候,中国的发起人缺乏资金和经验,中国的银行机构缺少外汇,并且正在为大量的不良贷款所困扰。同时,国内的基础设施建设相当薄弱,而中国生产商的设备制造能力也是不可靠的。在种种因素的作用下,项目融资市场上的贷款人主要是外资银行,贷款品种包括商业贷款、出口信贷以及政府贷款,贷款中的大部分用来进口国外生产的机器设备。贷款人不但要求在项目的全部资产之上设置担保,而且往往要求并能够获得发起人的保证担保,甚至是项目所在地政府的担保,尽管这在项目融资的模式中并不是常见的安排。

经过20多年的发展,中国公司和银行进行的项目融资交易模式已经有了很大的变化。目前,具备中国因素的项目融资交易主要有两类:在中国境内进行的项目融资和在中国境外进行的项目融资。两种模式有各自不同的特点。


Continue Reading 中国项目融资的发展

By: Gao Chunkai, He Yunfan and Li Lingxiao of King and Wood’s Foreign Direct Investment Group

I. Background

On May 20, 2011, the State Administration of Foreign Exchange ("SAFE") issued the Circular of the SAFE on Operating Rules Concerning Financing and Round-Trip Investment Undertaken by Domestic Residents through Overseas Special-Purpose Vehicles (1)( "Circular 19" or "New Operating Rules"), which took effect on July 1, 2011. This Circular provides new operating rules for the foreign exchange registration with the SAFE of round-trip investments made through special-purpose vehicles ("SPV") and non-SPVs.


Continue Reading Brief Analysis of Rules Covering Financing and Round-Trip Investment by Domestic Residents through Overseas Special-Purpose Vehicles

作者:高醇恺、李凌霄和贺云帆 金杜律师事务所外商直接投资
一、背景介绍

国家外汇管理局(“外管局”)于2011年5月20日颁布了《境内居民通过境外特殊目的公司融资及返程投资外汇管理操作规程》(1)(“19号文”或“新操作规程”),为特殊目的公司、非特殊目的公司返程投资相关的外汇登记提供了新的操作依据。

外管局曾于2005年10月21日颁布了《关于境内居民通过境外特殊目的公司融资及返程投资外汇管理有关问题的通知》(2)(“75号文”),之后外管局综合司先后于2005年、2007年和2009年颁布了《国家外汇管理局综合司关于下发<关于完善外债管理有关问题的通知>及<关于境内居民通过境外特殊目的公司融资及返程投资外汇管理有关问题的通知>操作规程的通知》(3)(“124号文”)、《国家外汇管理局综合司关于印发<国家外汇管理局关于境内居民通过境外特殊目的公司融资及返程投资外汇管理有关问题的通知>操作规程的通知》(4)(“106号文”)及《国家外汇管理局综合司关于印发<资本项目外汇管理业务操作规程(2009年版)>的通知》(5)(“77号文”,与124号文和106号文统称“旧操作规程”)。目前就境内居民通过境外特殊目的公司融资及返程投资相关的外汇事宜主要是适用77号文。


Continue Reading 《境内居民通过境外特殊目的公司融资及返程投资外汇管理操作规程》解读

On June 9, 2009, the State Administration for Foreign Exchange (“SAFE”) issued the Notice on Certain Issues Relating to Foreign Exchange Administration on Offshore Lending by Domestic Enterprises (the “Notice”) effective as of August 1, 2009, in an effort to deal with the difficulties faced by offshore Chinese-funded enterprises that have “gone abroad” in obtaining financing offshore and increasing working capital, to encourage more domestic enterprises with strong capital strength to “go abroad”, and to enhance the use of funds by domestic enterprises.
 

King & Wood’s Finance Group

 


Continue Reading SAFE Circular to Improve Forex Administration on Offshore Lending

Huang Caihua, Associate, Foreign Direct Investment

Recently, the Chinese government issued a couple of new laws and regulations to curb overseas “hot” money and strengthen the administration of foreign exchange. On August 5, 2008, the State Council amended and promulgated the Regulations on Foreign Exchange Administration of the People’s Republic of China which requires that foreign exchange and the fund for settlement in a capital account should be used as approved by relevant approval authorities. On August 29, 2008, the Circular of Relevant Implementation Questions Concerning the Improvement of Administration of Payment and Settlement of Foreign Exchange Capital of Foreign Invested Enterprises (the “Circular”) was then issued by the State Administration of Foreign Exchange (“SAFE”), according to which the RMB settled from the capital account of a foreign invested enterprise (“FIE”) should be used in accordance with the business scope approved by the governmental agencies and may not be used to make equity investments in China. This means foreign investors cannot directly make use of the foreign exchange in their capital account to invest in China, which is expected to have a major impact on domestic re-investment by FIEs.
Continue Reading Foreign Exchange Capital: Restrictions on Domestic Investment