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Legal Aspects of Foreign Investment in the

RETAIL SECTOR AND IN E-COMMERCE

In the People’s Republic of China

 

 

By T.K. Chang*

张大光

 

 

SYNOPSIS

 

 

 

§ 7.01       Introduction

§ 7.02       Development of Foreign Investment in the Retail Sector

§ 7.03       Summary of Current Law

§ 7.04       Encouraged Wholesaling and Retailing Services

§ 7.05       Foreign Invested Commercial Enterprises 

                 [1]      Commercial Sector Measures             

                 [2]      Implementation of the Commercial Sector Measures

§ 7.06       Retailing of Certain Specific Products

                 [1]      Publications: Books, Newspapers, Magazines and

                           Electronic Publications  

                 [2]      Audio-visual Products: DVD’s, Video Cassettes and

                           Sound Recordings

                 [3]      Petroleum

                 [4]      Pharmaceuticals

§ 7.07       Favored Treatment of Hong Kong and Macao Investors

§ 7.08       Direct Selling

§ 7.09       E-Commerce

                 [1]      Telecommunications Regulations

                 [2]      Internet Music Services

                 [3]      Variable Interest Entity (VIE) Structure

                 [4]      Electronic Payment Systems

§ 7.10       Conclusion

 

7.01         Introduction

 

Retail sales in China in 2010 totaled 13.7 trillion RMB, an increase of 18.5% from 2009.[1] The total value of electronic commercial transactions in China was over 4.5 trillion RMB in 2010, of which the total value of Internet retail transactions was 523.1 billion RMB.[2] As of June 30, 2011, China had 485 million Internet users, of whom 173 million used the Internet to make online purchases, and 153 million made payments online. These figures hint at the enormous untapped potential for foreign investment in the retail sector and in e-commerce in China.

 

Today, most of the previous legal restrictions on foreign investment in the retail sector have been lifted. All of the market-opening concessions made by China in order to be admitted into the World Trade Organization (WTO) in 2001 have been phased in. In 2011, a new Foreign Investment Industrial Guidance Catalogue was promulgated, under which various additional product or services categories have been removed from the lists of those that are restricted or prohibited for foreign investment, including the retailing of autos and franchising. 

 

Importantly, online music services will now be open for foreign investment.  Foreign investment will also be permitted in the importation and master distribution of books, newspapers and periodicals, and the importation of audio-visual products and electronic publications.

 

With respect to e-commerce, “Internet sales” is classified as an industry that

is restricted for foreign investment, rather than prohibited for foreign investment like many other segments of China’s Internet market.  Yet, surprisingly and perhaps ironically, many major e-commerce companies that are thought of as indigenously Chinese operate in China under the same legal regime applicable to all foreign invested enterprises.  This is because many of them used foreign companies to list their stock abroad, or because they themselves are substantially owned by foreign companies.

 

Thus, for example, among the major Chinese e-commerce companies, Alibaba.com and the parent company of Dangdang.com were both incorporated in the Cayman Islands, and Joyo.com was incorporated in the British Virgin Islands. Moreover, Yahoo, Amazon and ebay each held substantial ownership in Alibaba.com, Joyo.com and Eachnet.com, respectively. These e-commerce companies are therefore subject to the same legal restrictions on foreign investment in the Internet sector applicable to all other foreign investors. 

 

The workaround solution to this problem was the so-called variable interest entity (“VIE”) structure, in which the required government licenses are held by domestic Chinese companies, but the actual operations are run by and the economic benefits accrue to the foreign investor.  In September 2011, however, the legality of the VIE structure was thrown into considerable doubt when it was reported that the Chinese government may crack down on VIE structures that circumvent Chinese law. 

 

Major foreign retailers such as Walmart and Carrefour have in recent years experienced difficulties in China that often appear to be overtly politicized.  Others such as Best Buy and Home Depot have retreated in the face of fierce local competition. Yet, despite these setbacks, no global company can afford not to be a player in China, which is and will continue to be one of the most important retail markets in the world. 

 

 7.02   Development of Foreign Investment in the Retail Sector

 

            Walking through the ostentatious splendor of a Shanghai shopping mall, one can easily forget that the retail sector used to be one of the most restricted sectors for foreign investment in China. The author can still remember in 1985 being asked by our then client, the Sheraton Great Wall Hotel in Beijing, whether it would be legal under Chinese law for a well-known international luxury goods maker to open up a small storefront within the hotel to sell items to foreign tourists. The answer was: although published Chinese law was silent on the subject, foreign investment in the retail sector was in effect prohibited, according to unpublished internal government regulations.

 

            But the ambitious executive in charge of the client reached exactly the opposite conclusion.  He decided that the only way to succeed in China was to act according to the rule that—what is not explicitly prohibited is therefore permitted.  The client’s attitude was, let’s push the envelope, so that by the time that the government bureaucrats find out about it, it is already a fait accompli that is generating tax revenues.

 

That, in essence, encapsulates the history of the development of foreign investment in the retail sector in China.  Between China’s opening in 1978 and 1992, foreign investment in the retail sector was prohibited by the Chinese government. Chinese-foreign joint ventures were permitted to sell in China limited quantities of the products that they themselves manufactured in China, and only if they were able to maintain a balance between their foreign exchange outlays and receipts.  But otherwise, foreign invested enterprises were not permitted to engage in any direct retail sales to Chinese customers.

 

            In 1992, the PRC State Council issued the Provisions on Investment by Foreign Merchants in Retail Commerce.[3]  Under these Provisions, six major cities including Beijing and Shanghai and the five Special Economic Zones were each permitted to establish on a trial basis “one or two” Chinese-foreign joint ventures engaged in retailing.  Each trial joint venture store must be individually approved by the central government.

 

            Despite these severe restrictions, hundreds of foreign invested retail stores soon proliferated across China. Foreign retailers, including Carrefour and major Taiwan and Hong Kong chains, just went ahead and opened up stores throughout the country, based upon the approvals granted by the local governments in which such stores were located.

 

            The State Council tried repeatedly to clamp down on this open defiance of central government authority.[4] For example, it ordered 199 foreign invested stores to be totally restructured, and it revoked the business licenses of another 36 foreign invested stores, which were ordered to shut down immediately.[5] These efforts were only partially successful, however, as local officials protected the stores under their jurisdiction, because their career advancement depended upon local tax receipts and gross economic activity.

 

            The turning point came in 1999, when the U.S. and China, after years of negotiations, signed the Agreement on Market Access, paving the way for China’s entry into the WTO.[6] As the price of admission into the WTO, China had to agree to open many sectors of its economy to foreign investment, including the retail sector. Although China still had to reach agreement with all the other members of the WTO before it could be admitted, the agreement between the U.S. and China formed the bulk of China’s market-opening concessions.

 

            China was formally admitted into the WTO in 2001, pursuant to its Protocol of Accession.[7] Attached to the Protocol were detailed schedules and annexes that contained the specific commitments made by China to remove restrictions on foreign investment in multiple industry sectors, including on “distribution services.”

 

            An explanation on terminology is in order here. The Accession Protocol, in line with WTO parlance, uses the general rubric of “distribution services” to refer to the five types of services: retailing, wholesaling, direct selling, franchising and “commission agents’ services.” In practice, however, there is significant overlap among all these terms, and usage in the Protocol and in Chinese regulations is often inconsistent.  To avoid needless confusion, this Chapter will use the term “retail sector” to refer generally to all of the above, and will also often combine discussions of retailing and of wholesaling.

 

            China agreed under the Accession Protocol to open up its retail sector to foreign investment according to a schedule phased in over the next five years.  But by December 2004, three years after WTO entry, most of the previous legal requirements imposed on foreign invested retail enterprises had been repealed, including on their geographical location, number, shareholding structure and form of investment.

 

In April 2007, the U.S. brought a case before the Dispute Settlement Body of the WTO with respect to China’s

 

…measures that restrict market access for or discriminate against foreign suppliers of distribution services for publications (e.g., books, magazines, newspapers and electronic publications) and foreign suppliers of audio-visual services (including distribution services) for audio-visual home entertainment products.[8]

 

In August 2009, the three-person panel formed by the WTO issued a 499-page decision in favor of the U.S.,[9] which China then appealed.  In December 2009, the WTO Appellate Body issued a 195-page report in favor of the U.S.,[10]which was officially adopted on January 19, 2010.  Subsequently, China agreed with the U.S. to implement the WTO ruling within 14 months from the date of adoption of the report.[11]

 

As part of the implementation of the WTO ruling, the Chinese government issued in December 2011 the latest Foreign Investment Industrial Guidance Catalogue.[12] The 2011 Catalogue supersedes the previous Foreign Investment Catalogue issued in 2007.[13]  In compliance with the WTO ruling, the Chinese government also amended various regulations concerning the administration of the publications and audio-visual products industries.

 

7.03     Summary of Current Law

 

To make this Chapter more useful and practical for businesspeople and lawyers, below is a summary of the current law on foreign investment in the retail sector.

 

Foreign investment in China is regulated generally under a periodically revised Foreign Investment Industrial Guidance Catalogue, which classifies industrial sectors into those that are Encouraged, Restricted or Prohibited for foreign investment.  The latest Foreign Investment Catalogue was issued in December 2011, and went into effect January 30, 2012.

 

The 2011 Foreign Investment Catalogue classifies as Encouraged for foreign investment the wholesaling and retailing industries of “modern logistics, such as common delivery of general merchandise and refrigerated delivery of fresh and agricultural     products, etc., and related technical services” and “village chain delivery.”

 

Certain wholesaling and retailing industries remain under the Restricted Class for foreign investment under the 2011 Foreign Investment Catalogue.  Importantly, however, a number of product and services categories under the Restricted Class in the previous Foreign Investment Catalogue issued in 2007 have been removed. Thus, the previous restriction on foreign investment has been lifted for the retailing of autos and for “commercial companies involved in franchising operations, entrusted operations or commercial management.”

 

Significantly, the 2011 Catalogue also removes “music” from the list of Internet businesses Prohibited for foreign investment. Thus, Internet music services, including the “electronic distribution of sound recordings,” will now be open for foreign investment.

 

In accordance with the WTO ruling, the importation and master distribution of books, newspapers and periodicals are no longer prohibited.  Foreign investment is also permitted in the importation of audio-visual products and electronic publications.  The distribution of audio-visual products (excluding motion pictures) still must be carried out in the form of Chinese-foreign cooperative joint ventures, but the Chinese party is no longer required to be the controlling shareholder.

 

Foreign investment in the retail sector shall be carried out using an investment vehicle called the foreign invested commercial enterprise. The foreign invested commercial enterprise can be in the form of a wholly foreign-owned enterprise, a Chinese-foreign equity or cooperative joint venture, or a partnership enterprise. 

           

            Restrictions remain on foreign investment in direct selling, i.e., selling through sales representatives by companies such as Avon and Amway.  “Mail order sales” also remain in the Restricted Class for foreign investment.

 

The “procurement and purchase of grains” is in the Restricted Class for foreign investment.  In addition, restrictions will continue on the “wholesale, retail and distribution (配送) of grains, cotton, vegetable oils, sugar, tobacco, crude petroleum, agricultural chemicals, agricultural films and chemical fertilizers.”  In these product categories, the Chinese party must hold the controlling shareholding in chain stores with more than 30 outlets that sell different types and brands from multiple suppliers. 

 

The “construction and operation of large scale agricultural products wholesale markets” is also restricted for foreign investment.  And in the construction and operation of gas stations, the Chinese party is required to hold the controlling shareholding in any gas station chain established by one foreign investor that has more than 30 gas stations selling refined petroleum of different types and brands from multiple suppliers. 

 

The Chinese party must hold the controlling shareholding in shipping agency, and foreign investment in ocean shipping tally must be carried out in the form of equity joint ventures or cooperative joint ventures.

           

            Hong Kong and Macao investors are granted special favorable treatment for their investments in the retail sector. For example, Hong Kong and Macao investors are permitted to establish wholly foreign-owned enterprises that engage in the retailing of pharmaceuticals, agriculture chemicals, agricultural films, chemical fertilizers, vegetable oil, sugar and cotton, and that have chains with more than 30 shops selling different brands from different suppliers. They are also permitted to establish wholly foreign-owned enterprises engaged in the distribution of audio-visual products (including post-motion picture products).

 

7.04     Encouraged Wholesaling and Retailing Services

 

            The 2011 Foreign Investment Catalogue revises the scope of wholesaling and retailing services that are Encouraged for foreign investment.  According to the previous 2007 Foreign Investment Catalogue, the wholesaling and retailing services Encouraged for foreign investment were:

 

 

Article VI. Wholesaling and Retailing Industries

 

    1.  Delivery of general merchandise

    2.  Modern logistics[14]

 

Under the 2011 Foreign Investment Catalogue, the industries that are Encouraged for foreign investment have been revised to:

 

Article VI. Wholesaling and Retailing Industries

 

     1.  Modern logistics, such as common delivery of general

     merchandise and refrigerated delivery of fresh and agricultural

     products, etc., and related technical services

2.     Village chain delivery

3.     Construction and operation of pallet and container unit dual use systems[15]

 

The scope of Encouraged industries covered by the 2011 Foreign Investment Catalogue appears to be narrower than the broad categories set forth in the 2007 Foreign Investment Catalogue. 

 

The more precise focus of the 2011 Foreign Investment Catalogue perhaps reflects the enormous progress that China has made in recent years in building up a more modern logistics and distribution, which had been one of the weakest parts of China’s retail infrastructure. For reasons of space and coherence, this Chapter will focus on the retail sector, and will not present a detailed discussion of foreign investment in the logistics industry, which perhaps belongs more appropriately in the Chapter on the transportation industry. 

 

7.05     Foreign Invested Commercial Enterprises

 

            [1] Commercial Sector Measures

 

            In 2004, the Ministry of Commerce established a new categorization of investment vehicles for foreign investment called the foreign invested commercial enterprise.  Pursuant to the Measures for the Administration of Foreign Investment in the Commercial Sector (the “Commercial Sector Measures”), foreign investment in the commercial sector shall be carried out by means of the foreign invested commercial enterprise.[16]

 

            The foreign invested commercial enterprise can be in the form of either a wholly foreign-owned enterprise, a Chinese-foreign equity joint venture or a Chinese-foreign cooperative joint venture.  As a limited liability company, the foreign invested commercial enterprise is subject to the basic requirement for minimum registered capital under the PRC Company Law of 30,000 RMB.  In practice, however, the approval authorities have generally required much higher amounts in registered capital, depending upon the locality and types of operations.

           

            In 2010, regulations issued by the State Council went into effect that permitted foreign companies and foreign individual to establish partnership businesses in China.[17] Such partnership enterprises may also engage in the retail business.

 

The term of operation of foreign invested commercial enterprises may not in general be longer than 30 years, or 40 years for enterprises located in the western and central regions of China. The foreign investor may be “a company, enterprise, other economic organization or an individual.” The Commercial Sector Measures encourage application by foreign investors “that are strong economically, that have advanced commercial operation management experience and distribution know-how, and that possess broad international sales networks.” 

        Existing foreign invested enterprises may apply to broaden their approved scope of business to include retailing and wholesaling.[18] Foreign invested commercial enterprises may also engage in the wholesale business, including “the wholesaling of merchandise, commission agency (other than auctioneering), import and export and related ancillary services”.  Enterprises that engage in auctioneering must comply with the relevant laws governing auctioneering.[19]

         [2]—Implementation of the Commercial Sector Measures

        The Commercial Sector Measures outline the procedures for the approval of foreign invested commercial enterprises by both the central government and local governments, perhaps reflecting the previous experience of unauthorized approvals by local governments. These bureaucratic procedures soon resulted in a backlog of applications, which led the Chinese government to issue a series of regulations setting forth in detail the application procedures for foreign invested commercial enterprises.[20] 

        These regulations list the documents that must be submitted for the different forms of foreign investment in the commercial sector, including when a foreign investor makes an investment in a domestic retail enterprise, or when a non-retail foreign invested enterprise adds distribution to its business scope.[21] Provincial authorities shall issue approval or rejection of such applications within one month, while the Ministry of Commerce has an approval time limit of three months.[22]

        The Chinese government has continued to simplify such application procedures, devolving many approval powers to local governments and development zones.[23] Provincial governments were eventually given the authority to approve all foreign investment commercial enterprises, other than “non-store retailing by television, telephone, mail order, Internet or vending machines, or the wholesaling of audio-visual products or the sale of books, newspapers and periodicals,” which must still be approved by the Ministry of Commerce.[24] 

 

7.06     Retailing of Certain Specific Products

As discussed above, China is permitted under its WTO Accession Protocol to continue imposing legal restrictions on the retailing of certain products, including publications, audio-visual products, petroleum and pharmaceuticals.  This Chapter will discuss the regulations relating to foreign investment in the retailing of each of these product categories. 

  [1]  Publications: Books, Newspapers, Magazines and Electronic Publications

 

The publishing and distribution of books, newspapers, magazines and electronic publications are tightly controlled in China, due to their potential political impact.  Such business activities are under the primary jurisdiction of the General Administration of Press and Publication, but authority is also held by the State Council Information Office, the Publicity Department of the Communist Party of China, and other ministries, organs and departments of the Chinese government and the Party. 

 

Under the 2011 Foreign Investment Catalogue, the “publishing of books, newspapers and periodicals” is still under the Prohibited Class for foreign investment.  But in accordance with the WTO ruling, the “importation and master distribution (zong fa xing)”[25] of such products have been removed from the Prohibited Class, and would be permitted for foreign investment in the future.

 

In order to comply with the WTO ruling, the Regulations for the Administration of Publications were amended in March 2011, and state:

 

China permits the establishment of Chinese-foreign equity joint ventures, Chinese-foreign cooperative joint ventures and wholly foreign-owned enterprises engaged in the business of putting on sale (fa xing) books, newspapers, periodicals and electronic publications. [Emphasis added]

 

There are two changes in this provision, as compared to the previous version of these Regulations issued in 2002. [26]  

 

First, under the 2002 Regulations, such foreign invested enterprises were only permitted to engage in the “sub-distribution” (fen xiao) of such publications, whereas under the 2011 Regulations, they are permitted to engage in the “putting on sale” (fa xing) of such publications.  The U.S. and China disagree on the definition of these legal terms, as well as the definition of other legal terms for which it is difficult to find English and Chinese equivalents. [27] For the sake of clarity, the term “fen xiao” is generally translated as “distribution” in this Chapter, unless context requires the more specific translation of “sub-distribution.”

 

The second change in the above provision was to add “electronic publications” to the list of products in which such foreign investment was permitted.   Furthermore, the 2011 Foreign Investment Catalogue removes the “importation” of electronic publications from the list of businesses Prohibited for foreign investment. 

 

 In further compliance with the WTO ruling, the Regulations for the Administration of the Publications Market were amended and restated in March 2011.[28] Under these Regulations, the foreign investor may not be the controlling shareholder in foreign invested chain stores with more than 30 outlets that are engaged in distribution (fa xing) of books, newspapers and magazines. Hong Kong and Macao investors are permitted, however, to own up to 65% equity in such enterprises.

 

The previous regulation governing foreign invested enterprises for the distribution of books, newspapers and periodicals, as well as the three supplementary provisions to such regulation, have also been repealed.[29]

 

             [2]Audio-visual Products: DVD’s, Video Cassettes and Sound Recordings

 

 The production and distribution of audio-visual products, including DVD’s, video cassettes and sound recordings, are strictly controlled by the Chinese government.  Such business activities are under the primary jurisdiction of the State Administration for Radio, Film and Television, but authority is also held by the Publicity Department of the Communist Party of China, the Ministry of Culture and other ministries, organs and departments of the Chinese government and the Party. 

 

Under the 2011 Foreign Investment Catalogue, the “publishing and production of audio-visual products” are still under the Prohibited Class for foreign investment.  But in accordance with the WTO ruling, the “importation” of such products has been removed from the Prohibited Class, and would be permitted for foreign investment in the future. The Measures for the Administration of the Importation of Audio-visual Products were amended accordingly in April 2011.[30]

 

Under the 2011 Foreign Investment Catalogue, the “distribution of audio-visual products (excluding motion pictures)” is still required to be carried out in the form of Chinese-foreign cooperative joint ventures, but the Chinese party is no longer required to be the controlling shareholder.

In March 2011, the Chinese government amended the Regulations for the Administration of Audio-visual Products to state that “China permits the establishment of Chinese-foreign cooperative joint ventures engaged in putting on sale (fa xing) audio-visual products.”  Under the previous 2002 Regulations, such joint ventures were only permitted to engage in the “sub-distribution” (fen xiao) of audio-visual products. [31]  

 

As mentioned above, the Chinese government also amended the Regulations for the Administration of the Publications Market, which repeal the two previous regulations governing the wholesaling, retailing and rental of audio-visual products, and governing Chinese-foreign cooperative enterprises for the distribution of audio-visual products (and its two supplementary provisions).[32]  Thus, Hong Kong and Macao investors are now permitted to establish wholly foreign-owned enterprises or equity joint ventures engaged in the distribution of “audio-visual products (including post-motion picture products).”

[3] Petroleum                                          

The Chinese government continues to impose restrictions on foreign investment in the sale of crude petroleum and refined petroleum.  The Chinese party is required to hold the controlling interest in chain stores with more than 30 outlets that sell different types and brands from multiple suppliers that are engaged in the wholesaling, retailing or logistics distribution of crude petroleum. 

The Ministry of Commerce has issued the Measures for the Administration of the Crude Petroleum Market, which impose strict requirements on enterprises selling   crude petroleum, including minimum registered capital of 100 million RMB, crude petroleum storage facility with a capacity of at least 200,000 cubic meters, etc.[33]

Similarly, the Measures for the Administration of the Refined Petroleum Market require that an enterprise engaged in the wholesaling of refined petroleum have minimum registered capital of 30 million RMB, have refined petroleum storage facility with a capacity of at least 10,000 cubic meters and fulfill other strict conditions.[34]

With respect to the wholesaling of refined petroleum and the construction and operation of gas stations, the Chinese party is required to hold the controlling interest in a gas station chain established by one foreign investor that has more than 30 gas stations selling refined petroleum of different types and brands from multiple suppliers. The international oil majors, such as BP, Exxon Mobile, Shell and Total, have all been approved to enter the retail market for refined petroleum, and plan to build thousands of gas stations across China.

 [4] Pharmaceuticals

        Pharmaceuticals had been one of the sectors restricted for foreign investment under the 2007 Foreign Investment Catalogue, as well as the draft version of the 2011 Foreign Investment Catalogue that had been published in April 2011 for public comment.  In the final promulgated version of the 2011 Foreign Investment Catalogue, however, the pharmaceuticals sector has been removed from the list of industries that are restricted for foreign investment.  

        Nevertheless, the pharmaceuticals sector remains highly regulated under regulations that are applicable to both Chinese companies and foreign companies and therefore in compliance with the WTO rules on the non-discriminatory treatment of foreign companies.  The State Food and Drug Administration has issued the Measures for the Administration of Drug Business Licenses, which establish the regulatory framework for the issuance of licenses for the distribution of pharmaceuticals.[35]  The Ministry of Commerce, which shares responsibility for regulating the sales of pharmaceuticals, has issued its national pharmaceuticals distribution policy for the 2011—2015 Five-Year period.[36]

7.07     Favored Treatment of Hong Kong and Macao Investors

Investors from Hong Kong and Macao are granted favourable treatment with respect to their investments in the retail sector, in accordance with the Closer Economic Partnership Arrangements (CEPA) signed by China with Hong Kong and with Macao.[37] 

            In order to prevent foreign investors from simply forming a company in Hong Kong and taking advantage of such favorable treatment, the CEPA agreement defines the criteria for a “service supplier” from Hong Kong that would enjoy such treatment.  The service supplier must be a company organized under Hong Kong law, be engaged in substantive business operations in Hong Kong for 3 years or more, have paid profits tax in Hong Kong and own or rent premises in Hong Kong, and in addition, more than half of its staff must be permanent Hong Kong residents.[38]

 

Hong Kong and Macao investors are permitted to establish wholly-owned enterprises that have more than 30 shops selling different brands from different suppliers and engaged in the sale of “pharmaceuticals, agriculture chemicals, agricultural films, chemical fertilizers, vegetable oils, sugar and cotton.”  They are granted this favorable treatment pursuant to the 4th Supplementary Provisions to the “Measures for the Administration of Foreign Investment in the Commercial Sector.”[39] The 4th Supplementary Provisions supersede the 1st and 2nd Supplementary Provisions, which had established equity thresholds of 51% and 65%, respectively.  But it is unclear whether the 4th Supplementary Provisions would override the 3rd Supplementary Provisions, which permit Hong Kong and Macao investors to own up to 65% equity in chains with more than 50 shops (as opposed to 30 shops).[40] 

 

As discussed above, Hong Kong and Macao investors are permitted to establish wholly foreign-owned enterprises or equity joint ventures engaged in the distribution of “audio-visual products (including post-motion picture products).” In addition, they are permitted to own up to 65% equity in chain stores distributing “books, newspapers and periodicals.”

§ 7.08    Direct Selling

        Direct selling, i.e., selling through sales representatives, was one of the first types of retailing carried out by foreign investors to flourish in China.  Companies such as Avon, Mary Kay Cosmetics and Amway found a ready market of eager customers and ambitious sales representatives. 

At the same time, direct selling has been one most strictly regulated industries in China, in part due to prevalence of pyramid schemes and other abuses among Chinese direct selling companies.  In 1998, the State Council imposed an outright ban on the direct selling operations of all foreign and domestic companies,[41] and ordered them to convert their businesses into fixed-location store operations.[42]

Multinationals that had made major investments in their direct selling business in China in reliance upon previous government approvals were blindsided by the ban, but had no choice but to comply with the new regulatory regime. Avon, for example, was forced to establish many thousands of retail stores and department store counters throughout China.

The ban on direct selling was finally lifted in 2005, when the State Council issued the Regulations for the Administration of Direct Selling.[43] But the State Council also issued regulations concerning “pyramid selling” that prohibited multi-level marketing (which was the way international direct selling companies conducted business in the rest of the world), and permitted only single-level selling. [44]

According to these regulations, foreign companies investing in a direct selling enterprise must have at least 3 years of overseas direct selling experience.  Such direct selling enterprise must have minimum registered capital of 80 million RMB.  The enterprise must put up a security deposit of 30 million RMB, which will be adjusted monthly to 15% of the enterprise’s sales revenues in the previous month, with a minimum of 20 million RMB and a maximum of 100 million RMB. The security deposit will be used by the government to pay for returns of merchandise by consumers, compensation to sales representatives and indemnity to consumers due to product liability.

The direct selling enterprise is jointly liable for the selling activities of its sales representatives. Such representatives’ compensation must be based on their sales to end-users only, and their commission cannot exceed 30% of sales revenues, including any non-cash compensation. The direct selling enterprise must sign service contracts with its sales representatives, which may be terminated by the sales representatives during the first 60 days after signing, or by giving 15 days’ notice at any time thereafter.

The sales representative may not enter a consumer’s residence without permission, and if so requested by the consumer, must stop all selling activity and leave the consumer’s residence. The consumer is provided with a 30-day cooling off period, during which the consumer can demand replacement or return of the product, so long as the product has not been unpacked. In the event of dispute with the consumer, the burden of proof is on the seller. 

The regulations also require that local governments conduct an inspection of direct selling enterprises.[45] The Ministry of Commerce will then post on its direct selling administration website the names of the inspected direct selling enterprises and their service territories and locations.[46]    

            By the end of 2009, 24 enterprises had obtained direct selling licenses from the Ministry of Commerce, including 13 foreign invested enterprises.[47] Avon had received the first national license for direct selling in February 2006,[48] but the “complex hybrid business model” of fixed locations and direct selling that Avon operated in China was difficult to manage. In 2010, Avon’s revenues from China decreased by 35%, and its profits decreased by negative 154% to become a heavy loss, and the number of its active sales representatives decreased by 39%.[49]

            The initial advantage that the foreign direct selling companies enjoyed in penetrating the Chinese retail market, which was mostly closed to foreign investment at the time, has lessened in importance over the years, as the rest of the Chinese retail market became more open to foreign investment. 

§ 7.09  E-Commerce

        [1] Telecommunications Regulations

             The Chinese government has actively promoted and guided the development of e-commerce in China,[50] and “encourages and supports the development of Internet goods transactions and related services, and will implement even more active policies to promote the development of Internet commerce.” [51]  The Ministry of Commerce has even published a list of the 83 “model e-commerce enterprises.” [52]

The State Internet Information Office under the State Council and the Ministry of Industry and Information Technology have primary responsibility for regulating the Internet sector in China.  As for e-commerce, authority is also shared with the Ministry of Commerce, the State Administration for Industry and Commerce and each of the government departments having jurisdiction over the particular types of goods being sold over the Internet, such as books and publications, audio-visual products, pharmaceuticals or petroleum products, as discussed in greater detail elsewhere in this Chapter.

Internet enterprises are required generally to hold a “value-added telecommunications business license.”  The term “value-added telecommunications business” is defined under the PRC Telecommunications Regulations, which divides the telecommunications business into “basic” and “value-added.” [53] “Basic telecommunications business” refers to the business of public Internet infrastructure facilities and public data delivery and basic voice communications.

“Value-added telecommunications business” refers to telecommunications and information services that utilize the public Internet infrastructure, and encompasses most Internet services, including e-mail, online information storage and the focus of this Chapter, e-commerce. The telecommunications services included under these two terms have been revised pursuant to the Notice Concerning the Revision of the Catalogue of Telecommunications Services. [54]

Enterprises that provide value-added telecommunications services nationwide or across provinces are required to have a minimum registered capital of 10 million RMB, whereas enterprises engaged in such business within only one province need a registered capital of only 1 million RMB.  Other requirements and procedures are set forth in the Measures for the Administration of Telecommunications Business Operating Licenses.[55]  In addition, local governments, including those of Beijing and Shanghai, have also issued additional regulations governing the issuance of licenses to local telecommunications enterprises. 

E-commerce, or “Internet sales,” has been classified under the Restrict Class for foreign investment under successive Foreign Investment Catalogues.  The principal regulation governing foreign investment in Internet and e-commerce enterprises is the Provisions for the Administration of Foreign Invested Telecommunications Enterprises, issued by the State Council in 2001, and amended and restated in 2008.[56]

            The foreign investors in a foreign invested telecommunications enterprise cannot “in the end hold more than 50%” of the equity in such enterprise. The words “in the end” imply that temporary varying equity proportions may be permitted, so long as the final result is that the foreign investors cannot hold more than 50%.

            The principal foreign investor in a value-added telecommunications enterprise must have “good past results and operating experience in valued-added telecommunications services.” The statutory language implies that the principal foreign investor cannot be a new entrant into the telecommunications business.  The term “principal foreign investor” is defined as the foreign investor that holds the largest proportion (and more than 30%) of the total investment by all the foreign investors. 

        If the e-commerce enterprise is engaged in the sale of books, newspapers or periodicals, or pharmaceuticals or petroleum products, then it must hold the additional respective licenses required for operating such businesses.  Such licenses must be disclosed on its website in the form of either clear photographs of, or hyperlinks to, such licenses. [57]  

Internet enterprises may also be required to hold a “telecommunications and  information services business operating license.” This license is usually referred to in China by its name in English, as an “ICP” license, or “internet content provider” license, and the license is regulated pursuant to the Measures for the Administration of Internet Information Services.[58]

In response to recent online protests and scandals involving prominent e-commerce companies such as Alibaba, the Chinese government was, as of late 2011, drafting new regulations on e-commerce that will reportedly clarify the rights and responsibilities of the different parties involved in e-commerce.[59]  In addition, drafts of a comprehensive PRC Telecommunications Law have been debated for many years;   when promulgated, it will further clarify the regulatory regime governing the Internet and e-commerce in China. 

 [2]  Internet Music Services

The 2011 Foreign Investment Catalogue lifts the previous restriction on foreign investment in Internet music services, in order to comply with the 2010 WTO ruling.  According to the 2011 Foreign Investment Catalogue, the parenthetical, “except for music,” is added to the list of Internet services that are Prohibited for foreign investment:

 

Article X: (7)  

 

News websites, Internet audio-visual program services, Internet cafes and services locations, Internet culture operations (except for music)[60] [Emphasis added]

 

It is unclear from the statutory language whether the exception, “except for music,” modifies only the preceding phrase, “Internet culture operations” (which could conceivably mean that only informational websites about music would be permitted), or whether it would be interpreted to modify the other enumerated items, in particular, “Internet audio-visual program services.” 

 

            But regardless of the statutory language, the Foreign Investment Catalogue was revised in 2011 in part to comply with the 2010 WTO ruling. The WTO ruling clearly dealt with “electronic distribution of sound recordings.”  According to the Report of the Panel in the WTO case:

 

Section 8.2.3 (b) Electronic Distribution of Sound Recordings…

 

(i) Article X:7 of the Catalogue of Prohibited Foreign Investment Industries of the Catalogue…is also inconsistent with Article XVII of the GATS.[61]

 

This particular holding in the Report of the Panel is affirmed by the Appellate Body:

 

Paragraph 413

 

In the light of the above, we uphold the Panel’s conclusion, in paragraph 8.2.3(b)(i) of the Panel Report, that, as regards the electronic distribution of sound recordings Article X:7 of the [List] of Prohibited Foreign Investment Industries of the Catalogue…is also inconsistent with Article XVII of the GATS.[62]  

 

The language of the WTO original decision and appellate decision militate for the conclusion that foreign investment in online music audio services would be permitted in the future. 

 

            The question then becomes, would the WTO ruling compel the Chinese government to liberalize its restrictions on foreign investment in online music video services, such as music videos and video streaming?  The texts of the WTO original decision and appellate decision are not clear on this issue.  The Appellate Panel did state that:

The Panel observed that the entry "Videos, (...) distribution services" extended to the distribution of both physical and non-physical products and reasoned that "the concept of 'distribution services' in China's entries relating to videos and to sound recording must have similar meaning", that is, they both include physical and non-physical products.

We agree with this reasoning of the Panel.[63] 

 

The answers to the above questions of legal construction, and the extent of liberalization of restrictions on foreign investment in Internet music services, will have to await elucidation in future Chinese regulations.

 

[3] Variable Interest Entity (VIE) Structure

As discussed previously, many major Chinese Internet and e-commerce companies are subject to the same regulatory regime applicable to all foreign invested enterprises, because they operate through foreign companies incorporated abroad, or are themselves substantially owned by foreign companies.  In order to comply with Chinese law, such companies must conduct their Internet operations in China through a complicated structure of holding companies and interlocking agreements called the “variable interest entity” (VIE) structure.

        In a typical simplified VIE structure, a domestic Chinese company will be established, and it is the eponymous “variable interest entity,” which is a technical term derived from U.S. financial accounting standards. This domestic Chinese company will hold the necessary licenses, domain names, trademarks and other licenses required for the company’s Internet businesses in China. 

The foreign company will then establish one or more foreign invested enterprises, which will sign a series of agreements with the domestic Chinese company.  Such agreements will commonly include a technical service or consultancy agreement, an equity pledge agreement, a loan agreement, a proxy or power of attorney and other related agreements.  Under these agreements, the foreign invested enterprises will carry out the Internet operations and receive the economic benefits of such operations, but will have only limited ownership rights.

Internet businesses in politically sensitive areas, such as providing news, videos or “cultural” services, are generally prohibited for foreign investment under the Foreign Investment Catalogue. Companies engaged in such businesses, such as Tudou.com, Sina.com and Baidu.com, must use the VIE structure in order to comply with Chinese law.[64]  In contrast, e-commerce is not in the Prohibited Class of Internet businesses for foreign investment, but is merely in the Restricted Class under successive Foreign Investment Catalogues.

 Nevertheless, major Chinese e-commerce companies have also used the VIE structure for a variety of reasons, including facilitation of their stock listing abroad, the inherent problems of the required joint venture structure and the sheer difficulty of obtaining approval for foreign invested telecommunications enterprises.

 Thus, for example, the e-commerce company Dangdang.com used a Cayman Islands company to list its stock in Hong Kong and New York.  The Cayman Islands company then established a wholly foreign owned enterprise in China that in turn was a partner in a Chinese-foreign joint venture. These foreign invested enterprises then entered into a series of agreements with Beijing Dangdang Kewen E-Commerce Co. Ltd., a domestic Chinese company owned by the company’s founders, which held the licenses, domain names and trademarks required for operating the company’s Internet businesses in China. [65]

In 2006, the Ministry of Industry and Information Technology issued the Notice Concerning Strengthening the Administration of Foreign Investment in Operating Value-Added Telecommunications Business.[66] This Notice decreed that:

Telecommunications companies within China shall not lease, transfer or sell in any form or through any transformative means their telecommunications business operating license to any foreign investor, or provide in any form resources, venues, facilities or other conditions for the illegal telecommunications operations in China of any foreign investor.

The Notice required a telecommunications enterprise to own its domain names and trademarks under its own name or that of its shareholder.  The enterprise must also have premises and facilities to conduct the businesses specified in its license. 

Subsequently, in September 2011, it was reported that the China Securities Regulatory Commission had submitted an internal report to the State Council in which it requested that the State Council take actions to halt the use of abusive VIE structures.[67] 

It is uncertain whether the Chinese government will enforce the 2006 Notice more strictly in the future, and the ramifications of the 2011 CSRC report to the State Council are also unclear.  In 1999, the Chinese government forced foreign companies that had used the so-called “Chinese-Chinese-foreign” arrangement in order to circumvent restrictions on foreign investment in Chinese telecommunications carriers to unwind their investments, in many cases at a substantial economic loss.

It is perhaps less likely that the Chinese government would force existing Internet companies that are already listed on foreign stock exchanges to unwind their VIE structures. Nevertheless, there can be little doubt that VIE structures and other similar financial engineering designed to sidestep Chinese legal restrictions will face increased scrutiny and regulation in the future.

            [4] Electronic Payment Systems

 

            The most profitable aspect of e-commerce, as demonstrated by the experience of Paypal in the U.S., and Alipay in China, is often the secure payment system used for paying for merchandise online. The allegedly unauthorized transfer of Alipay out of the Alibaba group in 2011 was the subject of a major dispute between Alibaba and its foreign majority owners, Yahoo and Softbank. Yahoo’s stock price plummeted when it was discovered that Alibaba, in which Yahoo held a major stake, had transferred its entire interest in Alipay to a company personally owned by Alibaba’s founder. 

 

According to the Measures for the Administration of Non-Financial Institutions Payment Services, issued by the People’s Bank of China, non-financial institutions must obtain a “payment business license” in order to provide online payment services and other currency funds transfer services.[68] The detailed procedures concerning the application and qualifications for the payment business license are set forth in the Implementing Provisions to the Measures for the Administration of Non-Financial Institutions Payment Services.[69]           

            In May and September 2011, the People’s Bank of China announced that it had issued the first two batches of payment business licenses to 40 online payment companies, including Alipay, Tenpay, 99bill and ChinaPay, but not to the online payment services of Baidu and Netease.[70] The Chinese government was, as of late 2011, in the process of drafting new regulations governing foreign invested online payment processors, which reportedly will limit foreign ownership to 49%.[71]               

§ 7.10  Conclusion

            The mirage of a billion Chinese customers has bedazzled foreign traders and investors since the days of the proverbial 19th century Lancashire cotton mill owner who hoped to lengthen the shirt-tail of every Chinese person. For many years since then and after China’s opening in 1978, that vision has been more chimera than reality.  But in the first decade of the 21st century, with the lifting of most of the restrictions on foreign investment in the retail sector following China’s WTO entry, the dream of a billion customers is finally coming true.

            Restrictions remain on foreign investment in the retail sector, including on direct selling, mail order and Internet sales, and on foreign investment in the retailing of publications and audio-visual products and crude and refined petroleum, as well as grains, cotton, vegetable oils, sugar, tobacco, agricultural chemicals, agricultural film and chemical fertilizers.

            Foreign investment in e-commerce and online payment systems also continue to be restricted, and are subject to the extensive parallel systems of regulations governing value-added telecommunications services and banking services. Regulation of the Internet is a core interest of the Chinese government, which must balance important political, economic and commercial considerations in this key aspect of the Chinese economy and society. 

            Despite these continuing restrictions and a fiercely competitive environment, China remains an indispensable part of any international company’s global retail strategy, and one in which, as Apple, Ikea, Zara, Uniqlo and others have demonstrated, it is possible for foreign companies to prosper and succeed.



*T.K. Chang (Ta-kuang) 张大光 is a partner in the New York office of Zhong Lun Law Firm. Mr. Chang is a graduate of Harvard University (A.B. 1977, M.B.A. 1983, J.D. 1983) and Yale University (M.A. 1979).  This article is adapted from Chapter V: (7) in Doing Business in China, Juris Publishing, and is the updated 3rd Edition of the Chapter.

 

[1] Blue Book Annual Report on China’s Commercial Sector (2010–2011), Chinese Academy of Social Sciences, Institute of Finance and Trade Economics and the Li & Fung Research Centre, June 2011.

[2] Guiding Opinion Concerning the Development of Electronic Commerce under the 12th Five Year Plan, issued by the Ministry of Commerce, October 19, 2011.

[3] Provisions on Investment by Foreign Merchants in Retail Commerce, issued by the State Council, announced on November 23, 1992.

[4] See, Notice Concerning Issues Relating to the Rectification and Restructuring of Non-Trial Project Foreign Invested Commercial Enterprises, issued by the General Office of the State Council, August 5, 1997.

[5] Notice Regarding the Issuance of the Name Lists of the Rectified and Restructured Non-Trial-Project Foreign Invested Commercial Enterprises, issued by the Ministry of Foreign Trade and Economic Cooperation, State Development and Planning Commission and State Administration for Industry and Commerce, August 10, 1998.

[6] Agreement on Market Access between the People’s Republic of China and the United States of America, signed on November 15, 1999.

[7] Accession of the PRC, Decision of 10 November 2001, Protocol on the Accession of the PRC, World Trade Organization, 01-5996, November 23, 2001.

[8] Request for Consultation by the U.S., China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio-visual Entertainment Products, World Trade Organization (WT/DS363), 07-1499, April 16, 2007. 

[9] China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio-visual Entertainment Products, World Trade Organization (WT/DS363), Report of the Panel, 09-3798, August 12, 2009.

[10]See, Footnote 9, Report of the Appellate Body, 09-6642, December 21, 2009.

[11] See, Footnote 9, Status Report by China Addendum, 11-5707, November 8, 2011.

[12] Foreign Investment Industrial Guidance Catalogue (Amended 2011), issued by the National Development and Reform Commission and Ministry of Commerce, issued December 24, 2011, effective January 30, 2012.

[13] Foreign Investment Industrial Guidance Catalogue (Revised 2007), issued by the National Development and Reform Commission and Ministry of Commerce, October 31, 2007, effective December 1, 2007.

 

[14] See, Footnote 13, Foreign Investment Industrial Guidance Catalogue (2007), Encouraged Class, Article VI: (1) and (2).

[15] See, Footnote 12, Foreign Investment Industrial Guidance Catalogue (2011), Encouraged Class, Article VI: (1) and (2).

[16] Measures for the Administration of Foreign Investment in the Commercial Sector, issued by the Ministry of Commerce, April 16, 2004, and effective June 1, 2004.

[17] Measures for the Administration of Foreign Enterprises or Individuals Establishing Within China Partnership Enterprises, issued by the State Council, November 25, 2009, effective, March 1, 2010.

[18] Notice Concerning the Issue of Foreign Invested Non-Commercial Enterprises Adding Sale and Distribution to Business Scope, issued by the Ministry of Commerce, April 2, 2005.

[19] See, Auction Law of the PRC, promulgated by the Standing Committee of the National People’s Congress, July 5, 1996, effective, July 1, 1997; and Law of the PRC on the Protection of Cultural Relics, promulgated by the Standing Committee of the National People’s Congress, October 28, 2002.

[20] See, Guide to Application for Foreign Invested Commercial Enterprises, issued by the Ministry of Commerce, August 5, 2005.

[21] Application Materials for Foreign Invested Projects in the Commercial Sector, issued by the Ministry of Commerce, August 5, 2005.

[22] Time Limits for Review and Approval of Foreign Investment in Commercial Sector Projects, issued by the Ministry of Commerce, August 5, 2005.

[23] Notice Concerning Delegating to Local Departments the Review and Approval of Foreign Invested Commercial Enterprises, issued by the Ministry of Commerce, December 9, 2005; and Notice Concerning Issues Relating to the Delegation to Central Government Level Economic and Technology Development Zones of Authority to Review and Approve Foreign Invested Commercial Enterprises and International Freight Forwarding Agent Enterprises, issued by the Ministry of Commerce, February 9, 2006.

[24] Notice Concerning Delegation of the Matter of the Approval of Foreign Invested Commercial Enterprises, issued by the Ministry of Commerce, September 12, 2008

[25] The term,zong fa xing,” which the U.S. translated as “master distribution,” is a term that China argued is one of those “unique terms that can find no English word matching its exact meaning.”  See, Footnote 9, WTO Report of the Panel, Annex A-1, “Translation Differences in the Report,” 09-3798, August 12, 2009.

[26] Amendments to the “Regulations for the Administration of Publications,” Article 19, issued by the State Council, March 19, 2011, amending Article 39 of the previous “Regulations for the Administration of Publications,” issued by the State Council, December 25, 2001, effective February 1, 2002.

[27] See, Footnote 25. The term, “fa xing,” which the U.S. translated as “distribution”, is another term that China argued is one of the “unique terms that can find no English word matching its exact meaning,” The term “fen xiao” was also translated as “distribution” by the U.S., but China translated it as “sub-distribution.” WTO Report of the Panel, Annex A-1, “Translation Differences in the Report.”

[28] Regulations for the Administration of the Publications Market, issued by the General Administration of Press and Publications and the Ministry of Commerce, March 25, 2011.

[29] See, Measures for the Administration of Foreign Invested Distribution Enterprises for Books, Newspapers and Periodicals, issued by the General Administration of Press and Publication and the Ministry of Foreign Trade and Economic Relations, March 17, 2003, effective December 1, 2004; and Supplementary Provisions, April 2, 2007, effective May 1, 2007; and Supplementary Provisions II, August 2, 2009, effective October 1, 2009; and Supplementary Provisions III, December 27, 2010, effective January 1, 2011.

[30] Measures for the Administration of the Importation of Audio-visual Products, issued by the General Administration of Press and Publications and General Administration of Customs, April 6, 2011.

[31] Regulations for the Administration of Audio-visual Products, issued by the State Council, March 19, 2011. amending and restating the previous Regulations, issued by the State Council, December 25, 2001, effective, February 1, 2002.  See, discussion of the terms “fa xing” and “fen xiao” in Footnote 27 and associated text.

[32] See, Footnote 28, Regulations for the Administration of the Publications Market, repealing Measures for the Administration of the Wholesaling, Retailing and Rental of Audio-visual Products, issued by the Ministry of Culture, November 3, 2006, effective December 1, 2006; and Measures for the Administration of Chinese-Foreign Cooperative Enterprises in the Distribution of Audio-visual Products, issued by the Ministry of Culture and Ministry of Commerce, February 9, 2004, effective January 1, 2004; and Supplementary Provisions, August 20, 2009, effective October 1, 2009; and Supplementary Provisions II, December 27, 2010, effective January 1, 2011.

[33] Measures for the Administration of the Crude Petroleum Market, issued by the Ministry of Commerce, December 4, 2006, effective January 1, 2007.

[34] Measures for the Administration of the Refined Petroleum Market, issued by the Ministry of Commerce, December 4, 2006, effective January 1, 2007.

[35] Measures for the Administration of Drug Business Licenses, issued by the State Food and Drug Administration, February 4, 2004, effective April 1, 2004

[36] National Pharmaceuticals Circulation Development Plan Outline, issued by the Ministry of Commerce, May 6, 2011.

[37] Mainland and Hong Kong Closer Economic Partnership Arrangement, signed on June 29, 2003; and Mainland and Macao Closer Economic Partnership Arrangement, signed on October 17, 2003.

[38] See, Footnote 37, Mainland and Hong Kong Closer Economic Partnership Arrangement, Annex 5, Definition of “Service Supplier” and Related Requirements.

[39] Supplementary Provisions to the “Measures for the Administration of Foreign Investment in the Commercial Sector (IV),” issued by the Ministry of Commerce, February 5, 2009.

[40] Supplementary Provisions to the “Measures for the Administration of Foreign Investment in the Commercial Sector”, issued by the Ministry of Commerce: (I) issued January 9, 2006; (II) issued November 3, 2006 and effective December 1, 2006; and (III) issued November 5, 2007.

[41] Notice Concerning the Prohibition of Direct Selling Economic Activities, issued by the State Council, April 18, 1998.

[42] Notice Concerning Relevant Issues Concerning the Conversion of the Sales Methods Used by Foreign Invested Direct Selling Enterprises, issued by the Ministry of Foreign Trade and Economic Cooperation, State Administration of Industry and Commerce and Bureau of Internal Trade, June 18, 1998. 

[43] Regulations for the Administration of Direct Selling, issued by the State Council, August 23, 2005, effective December 1, 2005.

[44] Regulations on the Prohibition of Pyramid Selling, issued by the State Council, August 23, 2005, effective November 1, 2005.

[45] Notice Concerning Issues Relating to Clarifying the Inspection Work of Direct Selling Enterprise Service Networks, issued by the Ministry of Commerce, March 21, 2007.

[46] Measures for the Administration of the Establishment of Direct Selling Service Networks, issued by the Ministry of Commerce, September 20, 2006.

[47] Lu, Sheng, “Understanding China’s Retail Market,” China Business Review, online version only, May-June, 2010.

[48] Avon Corporation, Report on Form 10-K for period ended December 31, 2007, filed with the U.S. Securities and Exchange Commission, February 21, 2008.

[49] Avon Corporation, Report on Form 10-K for period ended December 31, 2010, filed with the U.S. Securities and Exchange Commission, February 24, 2011.

[50] See, Third-Party Electronic Commerce Platform Services Guidelines, issued by the Ministry of Commerce, April 12, 2011; and Several Opinions Concerning Acceleration of the Development of Electronic Commerce, issued by the State Council, January 8, 2005; and Guideline Opinions Concerning Online Commerce (Temporary), issued by the Ministry of Commerce, March 6, 2007.

[51] Provisional Measures for the Administration of Internet Goods Transactions and Related Services, issued by State Administration for Industry and Commerce, May 31, 2010.

[52] Electronic Commerce Model Enterprises List, issued by the Ministry of Commerce, August 10, 2011.

[53] PRC Telecommunications Regulations, issued by the State Council, September 25, 2000.

[54] Notice Concerning the Revision of the Catalogue of Telecommunications Services, issued by the Ministry of Information Industry, February 21, 2003.

[55] Measures for the Administration of Telecommunications Business Operating Licenses, issued by the Ministry of Industry and Information Technology, March 5, 2009, effective April 10, 2009.

[56] Provisions for the Administration of Foreign Invested Telecommunications Enterprises, issued by the State Council, December 12, 2001, effective January 1, 2002, and amended and restated, September 10, 2008.

[57] See, Notice Concerning Relevant Problems Relating to the Approval and Administration of Foreign Investment in Projects Involving Sales By Means of the Internet or Vending Machines,” issued by the Ministry of Commerce General office, August 19, 2010. 

[58] Measures for the Administration of Internet Information Services, issued by the State Council, September 25, 2000.

[59] Lee, Melanie, “China to Draft New Regulations for E-Commerce,” Reuters, October 19, 2011.

[60] See, Footnote 12, Foreign Investment Industrial Guidance Catalogue (2011), Prohibited Class, Article X: (7).  Multinational companies have already begun to provide Internet music services in China.  See, exempli gratia, http://rdio-china.com/

[61] See, Footnote 9, Report of the Panel, Paragraph 8.2.3(b)(i), Page 467.

[62] See, Footnote 10, Report of the Appellate Body, Paragraph 413, Page 166.

[63] See, Footnote 10, Report of the Appellate Body, Paragraphs 368-369, Pages 152-153.

[64]See, e.g., Prospectus for Tudou.com, Page 6, filed with the U.S. Securities and Exchange Commission, August 17, 2011.  Sina.com reportedly held 11 different government licenses in order to be able to conduct its various Internet businesses.

[65] Prospectus for Dangdang.com, Page 4, filed with the U.S. Securities and Exchange Commission, December 8, 2010.

[66] Notice Concerning Strengthening the Administration of Foreign Investment in Operating Value-Added Telecommunications Business, issued by Ministry of Industry and Information Technology, July 13, 2006.

[67] “Popular China Company Structure Under Threat,” Reuters, September 18, 2011.

[68] Measures for the Administration of Non-Financial Institutions Payment Services, issued by the People’s Bank of China, effective September 1, 2010.

[69] Implementing Provisions to the “Measures for the Administration of Non-Financial Institutions Payment Services,” issued by the People’s Bank of China, effective December 3, 2010.

[70] “China Issues Third-Party Payment Licenses to Regulate, Spur Online Businesses,” English Xihuanet.com, May 28, 2011; andChina’s Central Bank Issues 13 Additional Online Payment Licenses: Baidu and Netease Still Missing,” iChinaStock.com, September 1, 2011.

[71] Mann, Joseph, “Ebay Plans Paypal Partnership in China,” Financial Times, October 18, 2011.