China: China Outbound Investment Approval Process Refined

Last Updated: 1 July 2009
Article by David Olsson and Jin Xiong

Originally Published 24th June 2009

China's National Development and Reform Commission (NDRC) has issued new rules to enable it to exert greater control over strategic overseas investments by Chinese companies.

NDRC promulgated a circular entitled "Circular on Improving the Administration of Offshore Investment" (Circular) on 8 June 2009, imposing a new "preliminary review" process on significant Chinese outbound investments.

While the Chinese government has undertaken several steps in recent times to encourage and facilitate outbound investment by Chinese companies, the Circular signals a desire by the government's main approval body to take a more active role in approving strategic offshore investments.


Chinese outbound investment is subject to a number of regulatory approvals involving key ministries (commissions) such as NDRC, the Ministry of Commerce (MOFCOM), the State Administration of Foreign Exchange (SAFE) and the State-owned Assets Supervisory and Administration Commission (SASAC).

In practice, the approval by NDRC (including its provincial agencies) and the State Council (China's cabinet), which is called "project verification", is considered to be most critical. The applications to other regulators for approvals must be supported by NDRC's project verification.

Readers familiar with PRC investment into the resources sector in Australia will be familiar with the notion that NDRC approval has typically been the last remaining condition for a deal to proceed, generally after all the necessary Australian approvals are granted.

The current NDRC approval regime is established by the regulation entitled "Provisional Administrative Measures on Verification of Offshore Investment Projects", which was issued by NDRC on 9 October 2004 (commonly referred to as No.21 Decree).

Key Aspects Of The Circular

The Circular supplements (rather than supersedes) No.21 Decree. It only regulates "offshore investment projects" which, according to No.21 Decree, must be approved by NDRC or the State Council (after initial review by NDRC).

Such projects (significant projects) generally include general investment exceeding USD 10 million, resources investment exceeding USD 30 million and investment in Taiwan and countries/regions where China does not have diplomatic relationship.

Outbound investment other than those significant projects still follows the rules set out in No.21 Decree.

The key aspect of the Circular is that it requires significant projects to separately go through a "preliminary review process" which is in addition to the approval established by No.21 Decree. Prior to undertaking any "substantive work", the PRC investor of a significant project must first submit a Project Information Report to NDRC, copying all the relevant industry regulators of the State Council.

Such "substantive work" includes the signing of any legally binding agreements, lodging any legally binding bidding documents and lodging any approval applications to the government in the investment destination. A template of the Project Information Report is published with the Circular which the PRC investor is required to use for their lodgement purposes. NDRC is expected to issue a Confirmation Letter within 7 business days if the report lodged by the investor is in order.

If NDRC considers that a significant project has "apparent significant adverse factors", it may make particular remarks on the risk in the Confirmation Letter. The Circular says that in such cases, NDRC must undertake "strict review" and "the relevant enterprises and financial institutions shall prudently make decisions". It is not entirely clear what those expressions mean, but it does appear that such projects are unlikely to receive final approval by NDRC when the investor further progresses its project verification process with NDRC down the track (see below).

The Confirmation Letter is required when the investor later lodges its Project Application Report to NDRC pursuant to No.21 Decree, which is generally done after the investor has completed the so-called "substantive work". From this point onwards, the investor must follow the existing approval (verification) regime established by No.21 Decree.

The Circular also has penalty provisions, but in a typical vague fashion of Chinese legislation. Those investors who breach the Circular may be "criticised" by NDRC (including on public media) and must rectify their wrongdoings.

If an investment has caused significant damage to the state and the investor, NDRC may punish the investor jointly with other "relevant departments". Punishment is specified as including the pursuit of personal liability of the relevant corporate leader of the investor. The Circular also warns the PRC financial institution not to provide funding to "projects which breach the relevant rules".


Our experience suggests that as an unwritten protocol, major state-owned enterprises (SOEs) generally consult with NDRC at an early stage of their investment proposals in any case, particularly if a major investment is being considered.

In some instances, NDRC in fact dictates which SOE should be the chosen investor for a given target - this is particularly the case where the investment is negotiated between the Chinese government and the foreign government. It is therefore probably fair to say that the Circular simply formalises the existing protocol.

In any event, this new policy move should not be interpreted in any way as a backlash against the increasing tide of PRC outbound investment. If any thing, it indicates that the Chinese government wants offshore investment to be undertaken strategically and in a way that will enhance the prospects of success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions