what we think

By Maarten Roos, Catherine Zhu

Besides registered capital and financing through operational payments, a keyway for international investors to finance their Chinese operations is through foreign loans to their subsidiary. To do so, international companies need to understand several key legal conditions. 

Procedures

As China continues to apply strict foreign exchange controls on capital payments, a fundamental pre-condition to the foreign debt instrument is to register it with the local State Administration for Foreign Exchange (SAFE). While SAFE does not set a lot of conditions on the loan and so registration is mainly procedural, these days the process sometimes takes several months to complete.

In addition, China’s National Development and Reform Commission (NDRC) has set requirements for certain foreign debt instruments, which may require the issuance of the Certificate of Registration for Foreign Debts Issuance (in Chinese: 企业借用外债审核登记证明). Obtaining this Certificate could take 3 months or even longer, and so from a procedural perspective this is a key issue to consider.

Maximum Loan Amount

Under China’s thin capitalization rules, there are two ways to calculate the maximum foreign loan that a Chinese limited company can receive from abroad:

1. Under the Investment Gap Mode (in Chinese: 投注差模式), the maximum foreign loan amount is the difference between the total investment and the registered capital, proportional to how much of the registered capital has been paid up. Every foreign-invested enterprise has a set total investment amount (as per its Articles of Association), for which the law sets the maximum.
2. Under the Net Asset Mode (in Chinese: 全口径宏观审慎模式), the maximum foreign loan amount is calculated as a multiple of the Chinese company’s net assets. This multiple depends on the term of the loan and whether the loan is provided in CNY or foreign currency.

Conclusions

Foreign debt instruments are an acceptable means to finance operations. However, under Chinese thin capitalization rules, businesses will more likely see it as an additional way rather than the only way. At the same time, pre-approval is required and procedures are fairly lengthy. Thus, international companies are advised to strategize as early as possible.

R&P’s corporate team advises international investors on options to finance their operations in China in the context of the country’s strict capital control regime. The team also works closely with R&P’s specialists in compliance, employment law and tax, and with Acclime China (china.acclime.com) – which provides accounting, tax and payroll outsourcing services to the subsidiaries of international companies in China. For more information, please reach out to Maarten Roos (roos@rplawyers.com), Catherine Zhu (zhujialin@rplawyers.com) or your usual contact at R&P.