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On the status of cross-border mergers and acquisitions in China and Legal Strategies

Abstract: As China's market liberalization and accession to the World Trade Organization commitment to the progressive realization of the influx of foreign capital, investment has gradually shifted from the green M & A investment. In this paper, 8 September 2006 the revised law and its shortcomings, and finally, the article pointed out the primary task is to improve China's legal system in China M & A, and in this process some suggestions.  Chinese papers League finishing. Keywords: legislation; Foreign Investment Law;   M & As China's market liberalization and accession to the World Trade Organization commitment to the progressive realization of the influx of foreign capital, investment has gradually shifted from the green M & Investment . Global corporate giants are getting ready to M & A market in China to show their talents.  First, the status of cross-border mergers and acquisitions in China and the relevant provisions of China  According to UNCTAD statistics, global mergers and acquisitions in the last 20 years the average annual rate of 42% of the rapid rise, closing In 1999 the twentieth century, transnational mergers and acquisitions accounted for more than 85% of global FDI; 2000 scale cross-border mergers and acquisitions reached a record 1.1 trillion U.S. dollars, single transaction of more than 10 billion dollars in international mergers and acquisitions, 109 et seq. Can be seen from the 90s of last century, the cross-border mergers and acquisitions have become the preferred way of international direct investment. China, the world's largest emerging market, this fresh cheese has long been a coveted goal of multinational corporations. In the years of the twenty-first century, as the dotcom bubble burst, the United States, Japan and the European Union as the center of the three major economic zones of economic downturn, resulting in global FDI fell sharply by 51% of plummeted to 735 billion U.S. dollars, which drastically reduced the amount of cross-border mergers and acquisitions. However, China is a global investment of one of the few bright spots in the shadow of foreign acquisitions in China rise. In 2002, China attracted 52.7 billion U.S. dollars of foreign capital, for the first time surpassed the United States as the largest recipient of foreign direct investment. Then a few years China has been among the best. According to internationally renowned consultancy (OCOGlobal) in March of this year's annual report published in 2007, global foreign direct investment grew 5.1%, reaching 9,468 billion dollars. China has attracted foreign direct investment, reaching 90.4 billion U.S. dollars, followed by India, the United States third. 2007 subprime crisis to the international financial markets, the impact of causing a certain degree, while China's macroeconomic growth remained robust, the RMB continues to appreciate, such a market situation for Chinese enterprises to go abroad through cross-border mergers and acquisitions, global distribution and create a good external atmosphere. As of November 30, 2007, the Chinese market since there were 72 cross-border mergers and acquisitions,[link widoczny dla zalogowanych], of which 52 have been disclosed in the acquisition price totaling $ 16,772,000,000 event.  to move back, in fact, already occurred in China, foreign mergers and acquisitions. For example, in 1994 the world famous film maker Eastman Kodak Company into China, in order to deal with the then existing 48% stake in Fujitsu, Kodak film enterprise in China through mergers and acquisitions to grow rapidly and eventually realized after 4 years of industry-wide cross-border M & A ; July 5, 1995, the Japanese Isuzu Motors and Itochu Corporation to purchase a one-time non-tradable shares of the North tour of non-state-owned legal person shares 4002 shares, accounting for 25% of the total share capital. The end of 2001 China joined the World Trade Organization is a turning point in China's opening up. September 2002, approved by the competent authorities by the Government of China Shenzhen Development Bank to Newbridge Capital Group sold a 15% stake in Shenzhen Development Newbridge Capital to become the largest shareholder, become the true sense of the foreign controller the first unit; February 17, 2003, GE announced that GE Power Systems in China has completed the Kvaerner is located in Hangzhou (Hangzhou) Power Equipment Co., Ltd. acquired 90% of the equity, after the acquisition of Kvaerner Power Equipment Co., Ltd. will be renamed GE water (Asia) Limited. This is the GE in May 2002 following the completion of the acquisition Pute Sun Sheet Co., Ltd., Zhongshan City, 100% equity after the completion of the second in China, mergers and acquisitions, but also in China's largest acquisition to complete.  Subsequently, the acquisition of listed companies involved in the case of particularly noteworthy. For example, in January 2005, as the controlling shareholder of Hunan Valin Valin Group and Mittal Steel signed a share transfer agreement, the former Hunan Valin it holds 74.35% of the state-owned legal person shares in Mittal transfer 37.175% . After the transfer, Mittal and Valin Group in a tie for the largest shareholder. Since then, with the introduction of the new policy the domestic steel industry, is not clear that foreign holding in the context of the domestic steel industry. The two sides to renegotiate the merger, Mittal Steel agreed to its purchase of the shares decreased by 0.5% to 1% of the equity gap between the placing him second-largest shareholder.  2005 年 11 months, the world's largest cement company Lafarge, Lafarge Shui On Cement Co., Ltd. and its joint venture in order to complete the share price of 3 billion pairs of horses, Sichuan Investment Group. Since two-horse two-horse Group holds 66.5% of Sichuan's shares. After the change of equity, Lafarge will be two-horse actual control in Sichuan people.  world's second largest steelmaker Arcelor shares of the company's wholly owned --- Arcelor China Holding Corporation and Laiwu Iron and Steel Group Co., Ltd. in February 2006 in Jinan signed the Race to about 2.085 billion yuan Luo Zhongguo Laiwu Steel Group acquired shares held by non-tradable state-owned Laiwu Steel 35423.65 legal person shares, representing 38.41% of total equity Laiwu Steel. After the acquisition, Arcelor and Laiwu Steel Group of China tied for the largest shareholder of Laiwu Steel.  foreign acquisitions of Chinese enterprises face of strong momentum,[link widoczny dla zalogowanych], notwithstanding the provisions of the laws and regulations of China and constraints? September 23, 1995, the company's state shares and legal person shares. August 1999, the State Economic and Trade Commission issued the November 14, 2001, MOFTEC and China Securities Regulatory Commission jointly issued the The document for foreign industrial capital of listed companies in China initiated the establishment,[link widoczny dla zalogowanych], or acquisition of non-tradable shares by the transferee of domestic listed companies to remove the barriers to the basic policy. However, the opinion is still against the foreign-invested enterprises (including foreign investment Co., Ltd.) The transferee domestic non-tradable shares of listed companies, and clear that foreign investment is allowed temporary transferee company of non-tradable shares of listed companies. As foreign-invested enterprises in the legal sense is a joint venture registered in China, Sino-foreign cooperation and foreign-owned enterprises, is still a Chinese company, so that in November 2001 the Breakthrough 1995 November 22, 2001, MOFTEC and SAIC jointly released made a corresponding law. But clearly, this is only a certain extent, solve the problem of foreign mergers and acquisitions, and mergers and acquisitions not related to personnel placement, mergers and acquisitions of state-owned assets evaluation, pricing methods and other more complex issues. November 4, 2002, the Ministry of Finance, Securities and Futures Commission, the State Economic and Trade Commission jointly issued This indicates that 8-year-long suspension of the foreign-owned shares of listed companies and the transfer of corporate shares officially started working again, foreign investors through the acquisition of state-owned shares and legal person shares of listed companies merger became reality. However, the November 8, 2002, the State Economic and Trade Commission, Ministry of Finance, State Administration for Industry, the State Administration of Foreign Exchange jointly issued the  2003 年 3 7, MOFTEC, the State Administration of Taxation, State Administration for Industry, the State Administration of Foreign Exchange jointly issued the the date of implementation. Later in 2006 by the Ministry of Commerce Ministerial Meeting of the 7th was revised and adopted the Assets Supervision and Administration Commission, the State Administration of Taxation, State Administration for Industry, the China Securities Regulatory Commission, the State Administration of Foreign Exchange and other six ministries in the same year ordered the release and effect on September 8. formation. II, by M & A principles, procedures, approval have made more detailed provisions in the legislation of mergers and acquisitions has taken a substantial first step. Looking at the  1, the parties expanded the scope of foreign mergers and acquisitions.  extended to foreign investment as long as the various properties of non-domestic companies, are universal and cover a variety of M & A target company form of organization and ownership of domestic enterprises.  2, clearly the effect of foreign acquisitions and methods.   3, confirmed that the proportion of less than 25% of foreign mergers and acquisitions.  , simple, and improve the enthusiasm of foreign mergers and acquisitions (see paragraph 9).  4, clear the debts and liabilities of the acquired company claims to protect the interests of creditors.  for the enterprise to bear the credit and debt problems, Clear the enterprise to the original credit and debt, respectively,[link widoczny dla zalogowanych], after acquisition by the establishment of foreign enterprises and the original business commitment. As a supplement, foreign investors, the domestic enterprises, creditors and other parties can agree on disposal of the enterprise to be self-credit and debt, but this agreement shall not prejudice the third party interests and public interests.  5, clear the transaction price to determine the basis and method.  As for the rating agencies depends on the choice of the parties through consultation or approval, may agree on the territory of China assets appraisal institution established according to law, you can choose the evaluation of foreign bodies.  6, clearly defined payment period foreign investors to ensure that foreign investment in place in time.  This provision allows foreign investment to control the very low number of domestic enterprises, and all capital contributions late or not. If 93 years of cash contribution of foreign investment enterprise business license is issued within 3 months from the date must be completed in kind or industrial property, investment, and can not exceed 6 months. Owned by foreign investors the right to dispose of shares or the legal owner of the yuan also funded through the foreign exchange management department for approval. 
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