By Wang Kaiding, Huang Mengting and Tang Xinran King & Wood Mallesons’ Corporate & Securities group

On 26 December 2017, the National Development and Reform Commission (“NDRC”) issued the Administrative Measures for Enterprise Outbound Investment[1] (“Regulation No. 11”) which will come into force on 1 March 2018.

Regulation No. 11 contains six chapters and 66 articles. Compared to the 2014 Administrative Measures for the Verification and Record-filing on Outbound Investment Projects[2] (“Regulation No. 9”), there are several significant changes.  The change of the regulation’s title indicates that monitoring of outbound investments will no longer be limited to pre-transaction “verification” and “record-filing”, but will also cover the periods during and after transactions.
Continue Reading China’s NDRC Issued New Outbound Investment Rules

By George Zhao, Wang Zhen and Pan Peng King & Wood Mallesons’ Corporate & Securities Group

赵曰耀At the 2015 World Economic Forum in Davos, Premier Li Keqiang stated that China is entering a “new normal” status in which its economy grows at a slower but healthier pace. However, the slowing GDP growth rate has caused concern that China’s outbound investment in Africa will decrease as a result of this ‘new normal’ and some African countries have reportedly already experienced such effects. 
Continue Reading Where to?-The “New Normal” and the Impact on China’s outbound investment in Africa

By Gao Feng  Paul Starr   King & Wood Mallesons’ Dispute Resolution Group

高峰starr_pThe involvement of Chinese “giants” in arbitration outside of China has come at a price. Parties can lack experience at how best to handle international disputes. They rush precipitously into relationships with “local” on-the-ground law firms who themselves do not necessarily have sufficient international arbitration expertise, and more significantly lack the cultural knowledge and language skills to act as sufficient liaison. In this article, we share what we believe are the seven most serious mistakes made by PRC entities when trying to arbitrate abroad. We respectfully venture to add that these mistakes are by no means confined to Chinese clients – all parties embarking on dispute resolution in a country unfamiliar to them would do well to reflect on what follows.
Continue Reading Chinese “giants” and overseas arbitration

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 Chen Changhui and Jiang Zhipei King & Wood Mallesons’ IP Legal  Group

For decades, more and more Chinese overseas students and experienced employees in foreign enterprises have been flocking to domestic enterprises. In some cases, these employees have successfully developed products, that had been monopolized by enterprises in western countries in the name of trade secrets. Thus, Chinese enterprises are highly vulnerable to allegations by transnational enterprises of trade secret infringement. For Chinese enterprises, how to avoid falling into the pitfall of trade secret infringement and relevant legal risks, is the more immediate issue.

A trade secret falls within the protective scope of intellectual property (“IP”) laws. It refers to technical or business information which is not generally known to the public, but which has utility and can bring economic benefits to the right holder; the right holder must also have taken security measures to keep the information secret.
Continue Reading Coping Mechanisms for Trade Secret Infringement in Outbound Investment

作者:陈长会 蒋志培 金杜律师事务所专利

近十年来,越来越多留学人员和外企职员涌向国内企业,并且凭借在外企积累的丰富经验成功开发出原被西方公司作为商业秘密加以垄断的产品。此时,一些跨国公司很容易将相关中国企业看成侵犯商业秘密的嫌犯;而这些国内企业如何防止落入侵犯商业秘密的陷阱和避开商业秘密的法律风险,更加突出地提到我们的面前。

 商业秘密是一种不为公众所知悉并难以获得、能为权利人带来经济利益、具有实用性并经权利人采取保密措施的技术信息或者商业信息,属于知识产权法保护的范围。商业秘密最大特点是其边界模糊性,即使是一个清晰配方或图纸,也往往是商业秘密和公知技术的混杂体。因此,商业秘密纠纷往往案情复杂,程序繁琐,判断困难,主观性强。
Continue Reading 走出去企业如何避免和应对商业秘密纠纷

作者:陈长会 蒋志培 金杜律师事务所知识产权

在中国制造遍布全球的今天,走出去战略最核心问题是如何让品牌走出去。无论是中国制造还是中国创造,如果不注重品牌培育,继续使用他人商标,就难以摆脱随时可能被商标持有人“踢出局”的窘境。

多数走出去企业在发展之初并没有预见到将来能够有机会走出去,也没有足够资金和实力到海外注册企业、商标或域名,往往是等到准备走出去之时或者走出去之后才发现其名称、商标或域名早已存在或已被他人恶意抢注。最典型案例是海信集团与博西 “HiSense”商标纠纷以及国内某知名企业标识更换事件。借助于海信在国内行业地位以及中国市场在博西战略中份量,海信集团在国内舆论、学术界及政府各方努力下,最终与博西友好地化解了纠纷,拿回了商标权。而上述国内某知名企业则因原名泛滥采取更名策略,而新名称选择又欠妥,导致推广新标识代价巨大、困难重重。由这两个案例可见,解决企业名称、商标、或域名纠纷往往需要综合考量和高超技巧。
Continue Reading 走出去企业如何应对与品牌有关的知识产权争议

By Chen Changhui and Jiang Zhipei  King & Wood Mallesons’ Intellecutual Property Group

Chinese enterprises are progressively pursuing outbound investment strategy by expanding their businesses abroad. How to build the global branding of Chinese manufacturing is a key concern in China’s outbound investment strategies. If all Chinese-related exports, either “Made in China” or “Created in China”, continue to use the registered trademark of others without paying great attention to cultivating their own brands, Chinese exports are extremely likely to be kicked out by trademark owners in the international market.

Most Chinese enterprises don’t have immediate plan for outbound investment, or have sufficient financial strength to register enterprises, trademarks or domain names overseas in their early stage of development, and then find out their enterprise names, trademarks or domain names are already in existence or have been registered by others out of malicious cybersquatting.
Continue Reading Brand-Related Intellectual Property Disputes in Outbound Investment

 By Helena Chen and Charles Law, King & Wood’s Cross-Strait Research Group

Since the beginning of Ma’s leadership in Taiwan in May 2008, cross-strait relations have grown considerably closer. For example, the First Cheng-Chiang Summit in June 2008 expanded direct passenger flights and facilitated mainland residents’ travels to Taiwan. The Second Cheng-Chiang Summit in November 2008 explored issues relating to air transportation, shipping links, direct mail services, and food safety. In addition to establishing a consensus on jointly promoting PRC investment in Taiwan, the Third Cheng-Chiang Summit in April 2009 gave way to three agreements: Agreement on Joint Cross-Strait Crime-fighting and Mutual Judicial Assistance, Cross-Strait Financial Cooperation Agreement, andSupplementary Agreement on Cross-Strait Air Transport. As a result, Taiwan began amending and implementing laws and regulations concerning mainland investment in Taiwan.

Continue Reading Mainland Investment in Taiwan: Who Is the First to Take Advantage of Economic Deregulation?

By Li Jinnan, Partner, King & Wood’s Banking & Finance Group

In order to support outbound investment projects of domestic PRC entities, to meet the policy demands of domestic credit support, and to further facilitate trading and investing, the State Administration of Foreign Exchange ("SAFE") on July 30th, 2010 promulgated the Notice on the Administration of Overseas Security by Domestic Entities (the "Notice"), which came into effect as of the date of promulgation. This Notice relaxes the restrictions on financing of outbound projects.

Continue Reading New SAFE Regulations Support Financing of Outbound Deals