On 30 December 2020, the European Union (EU) and the People’s Republic of China concluded the EU-China Comprehensive Agreement on Investment (CAI) after 7 years of negotiations. The CAI aims to facilitate greater market access across different sectors and to reduce thresholds on doing investments in both EU and China. The CAI will replace the existing bilateral investment treaties between the 26 individual EU member states and China.
Although the text of the CAI has not yet been finalized and requires adoption and ratification by all parties involved, there is an opportunity for investors to consider new investments. In this article we will deepen on which ways the CAI endorses EU investments in China and vice versa and to which extent this will have an impact on the practice.
Pursuant to the main principles of the CAI, China pledged to open up several market sectors including the manufacturing (e.g. transport and telecommunication equipment, chemicals, health equipment) and automotive sectors which are the most important industries for EU investments in China. More than half of the EU direct investments in China have gone to those sectors.
Although the commitments made under the CAI are significant, it should be kept in mind that China will maintain its foreign investment negative list (‘Negative List’) which enumerates the industries and fields where foreign investment will be either prohibited or restricted in China. Furthermore, some liberations made by China under the CAI are already covered by domestic rules or policies. For instance:
We further note that there are opportunities for EU companies to invest in China for the following industry sectors:
On the EU side, the market is already open for service sectors under the GATS. EU will also give China greater market access in the wholesale, energy and renewable sectors. It seems that scrutiny will be eased towards Chinese technology firms including Huawei, but this has not been confirmed. Notwithstanding the fact that EU member states have yet the power to hinder such investments on the basis of national security grounds.
Level playing of field
The EU and China have made arrangements to create a more equal and level playing field in the field of foreign direct investments. In the CAI, China agreed that SOEs will make decisions based solely on commercial considerations and not discriminate towards EU investors. EU companies will furthermore have equal access to standard setting bodies which will enhance transparency and certainty in China. This is particularly relevant for legal proceedings conducted by foreign investors in China.
The CAI also obliges China to be transparent in the applicable rules and subsidies granted to SOEs that may have negative effects on the investment interests of EU companies. The aim is to prevent China of having state-funded companies that accelerate in certain industries where no or limited competition is possible by EU companies. EU member states are concerned regarding the strong presence of SOEs in acquiring EU targets. There is a specific need to ensure that all companies can compete on equal footing while preserving the benefits of international competition and foreign direct investments in the EU internal market. In that context, EU and China have agreed that there will be no interference in companies' freedom to license technologies. The CAI will thus increase the protection of IP-sensitive business information including trade secrets.
Both, the EU and China, made the commitment that standards of protection in the fields of labor and environment should not be lowered to attract investments. This is particularly important for making progress with the implementation of the Paris Agreement (climate change) and the ratification of the ILO Convention (labor), which to date has not yet happened. In addition, the standards for corporate social responsibility and business practices will be upheld by EU and Chinese companies. Specific working groups will be set up to follow this closely.
It now seems that the CAI will improve market access to both EU and China, but this does not apply to all sectors. The sectors benefiting for EU companies are air-transport related, construction and computer services. For the Chinese side, these sectors are in the field of wholesale, energy and renewable. It furthermore remains to be seen how the commitment to the principle of a level playing field and fair competition between EU companies and SOEs will be explained in the final text of the CAI. Nevertheless, the CAI will most likely play a role in creating new opportunities for EU and Chinese companies to consider new investments.
Promulgated on 19 December 2020, the China’s Measures for the Security Review of Foreign Investments (the “FISR Measures”)
BUREN has contributed the China chapter to the Lexology/Getting The Deal Through Product Liability Guide.
On 25 September, the China Securities Regulatory Commission (“CSRC”), People’s Bank of China and the State Administration of Foreign Exchange