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May 24th, 2009 admin Leave a comment Go to comments

China Explorer

Few Tips for You Tu Invest in China - Cnmining

IntroductionÂ

*Â All mineral resources in China are owned by the StateÂ
*Â Exploration rights and exploitation rights are licensed as â€œquasi-property rightsâ€ as their exclusivity is not guaranteed and they are not fully freely alienableÂ
*Â Exploration licensees have a â€œpriorityâ€ to obtain exploitation rightsÂ

Transferability of Mining RightsÂ

*Â Transferability of mineral rights in China is restricted to applicants with technical and financial abilityÂ
Â Â Â â€“Â The transferability of exploration rights is subject to compliance with minimum exploration expenditures and other conditions before approval is grantedÂ
Â Â Â â€“Â The transfer of exploitation rights is subject to a further set of conditionsÂ
*Â Current Chinese law states that:Â Â
Â Â Â Â â€“â€œprofiteering by speculating in exploration and mining rights is prohibitedâ€

*Â Mining rights can be mortgaged; however, established procedures are not yet in place

Enforceability of Mining Agreements

*Â To minimize costs, foreign companies in China generally enter into an agreement before establishing a statutory approved cooperative joint venture (CJV)Â
*Â Enforceability of pre-CJV agreements is uncertain as Chinese law is silent on the protection of foreign party interests under such agreements without a statutory approved CJV or anÂ exploration licenceÂ

Establishing A Mining Business in ChinaÂ

A multi-level, multi-ministry process:Â

(1) Review theForeign Investment Catalogue (certain mineral activity is permitted, encouraged, restricted or encouraged)

(2) Procedural roadmap to be followed:
â€“Â National Development and Reform Commission (â€œNDRCâ€) reviews â€œproject application reportsâ€Â
â€“Â Ministry of Commerce examines contracts and articlesÂ
â€“Â State Administration of Industry and CommerceÂ (â€œSAICâ€) oversees business registrationÂ
â€“Â MOLAR examines, registers and issues mining licenses.Â Â

Â ConclusionÂ

*Â China is progressing in its attempts to make the acquisition of mineral rights by foreign investors analogous to the process in most Western countries, although it has not yet fully succeededÂ
*Â Chinese mineral laws are constantly evolving to encourage foreign investment in certain mineral commoditiesÂ
*Â Inter-departmental control over mineral industry development needs to be settledÂ

Additional ConsiderationsÂ

The following additional subjects, among many others, are of utmost importance in considering investments in China:Â

*Â Â Extensive due diligence
*Â Â Consider best legal vehicle to use (e.g. cooperative joint venture)
*Â Â Impact of Chinaâ€™s entry into the World Trade Organization (â€œWTOâ€)
*Â Â Chinaâ€™s compliance with international legal principles and norms and mining industry standards
*Â Â Chinaâ€™s compliance with multilateral and bilateral treaties and conventions

*Â Â Regional differences in Chinese law and the application of such law by Chinese courts
*Â Â Â Importance of foreign parties and their joint venture partners strictly complying with the laws of China
*Â Â Â Severe implications of non-compliance with Chinese lawsÂ (e.g. obtaining necessary local, national and state approvals)
*Â Â Â Contract laws of China:- different views on their application; distinctions between contracts, memorandums of understanding and letters of intent; caution on China's preference to resolve disputes by â€œfriendly consultationâ€ and mediation rather than by provisions of contracts (e.g. arbitration provisions); and legislative restrictions on what can or cannot be in certain contracts notwithstanding general contract law

*Â Â Â Taxation: taxes, business levies, custom duties (business and personal); tax treatment varies depending upon the location, nature of the business and the nature of goods
*Â Â Â Foreign exchange and repatriation of funds - limitations thereon
*Â Â Â Environmental liability exposure (business and personal)
*Â Â Â Labour laws
*Â Â Â Care on reliance on Guanxi (network) or claims of relationships to shortcut or avoid compliance requirements
*Â Â Â The very best of legal advice, Chinese partners and other advisors who are highly respected and experienced

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