Many TMT companies have found China a market that is challenging to navigate. The challenges have included restricted sub-sectors, data localization requirements, and intellectual property protection. These market access issues have been the key issues during the trade war between the United States and China.
Regardless of the outcome of the trade war, China is likely to further loosen restrictions on foreign investment in the TMT sector. We have prepared this Guide to help investors understand the opportunities available.
This Guide is organized in two parts:
Part I – Q&A
Part I provides an introduction to the foreign investment basics and certain issues that a TMT investor must consider when approaching the Chinese market. Part I covers the following topics and is organized in a Question & Answer format to make it easy for you to find the information you need:
Market Access Issues
We begin with an overview of the Chinese foreign investment regime and the restrictions applicable to the TMT sectors, including a China Market Access Chart explaining which sub-sectors are open for foreign investment and which are restricted.
Foreign Investment Vehicles
We have included a primer on the main foreign investment vehicles available to foreign investors. This primer walks you through the benefits and challenges of each vehicle to help you decide how to best structure your investment, and explains the impact that the new Foreign Investment Law – the most significant overhaul of the Chinese FDI regime since it was put in place in the 1980s and 1990s – will have on existing and new foreign invested enterprises in China.
A discussion on the VIE structure is also included as a way to work around restrictions on market access. The VIE structure presents important benefits as well as challenges and risks that must be carefully assessed in evaluating the opportunity of using this particular structure.
Cyber Security and Data Protection
Any investor in the TMT sector needs to understand how China's cyber security and data protection laws will affect their business particularly around the requirements for data localization, cross-border data transfers, and the protection of China's national security interests. We have included a short discussion on the key aspects of the rules to help you understand what you need to know. And we explain why complying with the GDPR only doesn't afford you complete protection in China.
Intellectual property is lifeblood of any TMT business. We have included a short section to help you understand the intellectual property protections available in China as well as the key developments you need to know.
Many companies worry about the reliability of the Chinese court system to protect them should issues arise. We have provided an overview of the court system in China and the opportunities for legal recourse.
Part II – Client Alerts
Part II includes a selection of recent client alerts we have published which are most relevant to the TMT sector. We have included a full version of some of these client alerts and links to other client alerts that are available for download on our website.
We hope you find this Guide useful. Please feel free to contact any of the authors listed here for more information.
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.