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    Doing business in China : problems, cases, and materials / Daniel C.K. Chow, Anna M. Han.

    • Title:Doing business in China : problems, cases, and materials / Daniel C.K. Chow, Anna M. Han.
    •    
    • Author/Creator:Chow, Daniel C. K.
    • Other Contributors/Collections:Han, Anna M.
    • Published/Created:St. Paul, MN : West, ©2012.
    • Holdings

       
    • Library of Congress Subjects:Commercial law--China.
      Investments, Foreign--China.
    • Genre/Form:Casebooks (Law)
    • Description:xv, 552 p. : ill. ; 26 cm.
    • Series:American casebook series.
    • Notes:Includes bibliographical references and index.
    • ISBN:0314904794
      9780314904799
    • Contents:Machine generated contents note: ch. 1 China's Business Environment
      I. Introduction
      II. Scope of this Book
      III. Considerations for Establishing a Physical Presence in China
      IV. China's Economic System
      A. China's Pre-Reform Economic System
      B. PRC's Command Economy, 1949-1978
      C. State-Owned Enterprise
      D. Foreign Trade
      V. Political and Social Turmoil
      VI. China's Economic Reforms and Recent Growth
      A. Effect of Reforms Since 1978
      B. Factors Driving Economic Growth
      1. Market Reforms
      2. Foreign Trade
      3. High Savings and Investment Rate
      4. Investments in Education
      C. Effect of Reforms on State-Owned Enterprises
      VII. Closer Look at China's Foreign Trade and Trade Issues with the United States
      A. Export Driven Economy
      B. Inward Flows of Foreign Direct Investment
      C. Trade Issues with the United States
      1. Growth of the U.S. Trade Deficit with China
      2. Illegal Trade Practices: Currency Manipulation
      3. Unfair Trade Practices: "Hoarding" by China
      4. Technology Theft and Piracy of Intellectual Property Rights
      5. Other Trade Issues
      VIII. Human Rights
      IX. China's Political and Legal Systems
      A. Theories of Law in Traditional China
      B. Constitutions in the PRC
      C. State Structure
      1. Hierarchy of Legal Norms
      2. Resolving Conflicts
      D. Court System
      X. Lawyers and the Legal Profession
      XI. Communist Party of China (CPC)
      A. Stucture of the CPC
      B. Interlocking Directorates: The Key to CPC Power
      XII. Cultural Concerns
      A. Language
      B. Negotiating Styles
      1. Problem of "Losing Face"
      2. Business Negotiations
      C. Demographics
      D. Corruption in Business
      ch. 2 Foreign Investment Enterprises
      I. Introduction
      A. General Considerations
      1. Representative and Branch Offices
      2. Joint Venture
      3. Wholly Foreign-Owned Enterprise
      II. Joint Venture
      A. Approval Process for the Joint Venture
      1. Approval by Supervisory Authority
      2. Approval by Ministry of Commerce or its Lower Levels
      3. Issuance of Business License by Administrative Authorities
      B. Management Structure of the Joint Venture
      C. Registered Capital
      D. Sample Joint Venture Contract
      PRC Equity Joint Venture Law (2001)
      Equity Joint Venture Law Implementing Regulations (2001)
      Joint Venture Contract Between Beijing Panda Detergent Group and Ultra Bright (Hong Kong), Ltd
      III. Wholly Foreign-Owned Enterprise
      A. WFOE Approval Procedures
      B. Sample WFOE Articles of association
      Articles of Association of Ultra Bright (Beijing) Detergent Company
      IV. Holding Company and the Foreign Enterprise Conglomerate
      A. Purpose of a China Holding Company
      B. Approval Process and Scope of Business
      ch. 3 Corporate Reorganizations and Mergers and Acquisitions
      I. Overview of Laws Pertaining to Corporate Reorganizations and Mergers and Acquisitions in China
      A. Scope of the Various M&A Rules
      B. Different Types of M&A Transactions
      C. Share or Asset Purchase
      II. Reorganization and Conversion of an Equity Joint Venture into a Wholly Foreign-Owned Enterprise
      A. Considerations Leading to an FIE Restructuring
      B. Sample FIE Equity Transfer and Reorganization Contract
      Changes in Equity Interest of Investors in Foreign Enterprises
      - Several Provisions (1997)
      Contract Concerning the Transfer of Equity Interest in Ultra Bright Panda (Beijing), Ltd. Between Ultra Bright (Hong Kong), Ltd. and Beijing Panda Detergent Group, Ltd
      III. Mergers and Acquisitions Involving Domestic Chinese Companies
      A. Asset Transfer Issues
      B. Share Transfer Issues
      1. Special Rules for Publicly Listed Shares of a Domestic Company
      2. Share Swaps
      3. Restricted Categories
      4. National Economic Security
      5. Antitrust and Other Legal Concerns
      6. Approval Procedures Under the 2009 M&A Rules
      Note on the Exercise of Due Diligence in the M&A Transaction
      7. Sample M&A Share Transfer Agreement Between a Foreign Investor and a Domestic Chinese Enterprise
      Share Transfer Agreement Between Sichuan Computer Factory No. 5 and Pan Electronics
      IV. Provisions of the Anti-Monopoly Law Applicable to Mergers & Acquisitions
      A. Background of the AML
      B. AML Provisions Applicable to M&A Transactions and the Pre-Merger Review Process
      C. Recent MOFCOM Opinions under the AML
      MOFCOM Announcement No. 95, 2008, Notice of Anti-Monopoly Review Decision on Conditionally Approving Inbev N.V./S.A. to Acquire AnheUser-Busch, Inc., Nov. 18, 2008
      MOFCOM Announcement No. 22, 2009, Notice of Anti-Monopoly Review Decision on Forbidding Coca-Cola Co. to Acquire Huiyuan, Co., Mar. 22, 2009
      MOFCOM Announcement No. 28, 2009, Notice of Anti-Monopoly Review Decision on Conditionally Approving Mitsubshi Rayon Co., Ltd. To Acquire Lucite International Group Ltd., Apr. 24, 2009
      MOFCOM Announcement No. 76, 2009, Notice of Anti-Monopoly Review Decision on Conditionally Approving General Motors Corporation to Acquire Delphi Corporation, Sept. 28, 2009
      MOFCOM Announcement No. 77, 2009, Notice of Anti-Monopoly Review Decision on Conditionally Approving Pfizer Corporation to Acquire Wyeth Corporation, Sept. 29, 2009
      MOFCOM Announcement No. 82, 2009, Notice of Anti-Monopoly Review Decision on Conditionally Approving Panasonic Corporation's Acquisition of Sanyo Electric Co., Ltd., Oct. 30, 2009
      V. Review Regulations and Interpretations
      A. Notification Measures
      1. Notification
      2. Procedural Issues
      3. Definition of Control
      4. Turnover
      5. Documents and Process
      B. Review Measures
      1. Right to Hearing
      2. Remedies and Monitoring
      C. Labor Issues
      1. Existing Employment Contracts
      2. Non-Compete Clauses
      D. Tax implications
      ch. 4 Labor and Employment
      I. Introduction
      A. Employment of Foreign Nationals in the FIE
      B. Employment of Chinese Nationals in the FIE
      II. China's Labor Law Regime
      A. Statutory Labor Law
      1. Labor Law
      2. Labor Contract Law and Regulations
      3. Employment Promotion Law
      4. Labor Dispute Law
      B. Effect and Application of Laws
      1. Employment Contract and Writing Requirement
      2. Minimum Contents of the Employment Contract
      a. Term of Employment
      b. Employment without Term
      c. Hiring Employees
      d. Probationary Period
      Wang v. Employer
      e. Wages, Overtime Wages, and Paid Leave
      f. Terminating Employees
      g. Special Clauses in the Employment Contract: Non-Compete Agreements
      Beijing Intermediate Peoples Court v. Pharmaceutical Company
      3. Sample Employment Contract
      Employment Contract
      C. Trade Secrets
      No. 2 Sub-Procuratorate of the People's Procuratorate of Shanghai Municipality v. Zhou Derong, et al
      D. Labor Unions
      E. Communist Party Organizations in the FIE Workplace
      F. Employee Benefits
      ch. 5 Technology Transfer and Intellectual Property
      I. Introduction
      A. Role of Technology in Modern International Business
      B. Basic Principles in Technology Transfer
      C. China's Intellectual Property System
      1. Historical Attitudes Concerning Intellectual Property in China
      2. Modern Legislation and Legal Framework
      3. Overview of China's Intellectual Property Law Regime
      a. Patent
      b. Trademark
      c. Copyright
      d. Trade Secrets
      D. Intellectual Property Disputes in Courts
      Starbucks Corporation and Shanghai President Coffee Corp. v. Shanghai Starbucks Cafe Company Ltd. and Shanghai Starbucks Cafe Company Ltd., Nanjing Road Branch
      E. Technology Transfer Agreements
      Contract Law of the People's Republic of China (1999)
      Anti-Monopoly Law of the People's Republic of China (2008)
      PRC Regulations on Administration of Technology Import and Export (2002)
      Patent and Trademark License Agreement
      F. Counterfeiting and Commercial Piracy
      1. Closer Look at Counterfeiting and its Causes
      Daniel Chow, Organized Crime, Local Protectionism, and the Trade in Counterfeit Goods in China
      Daniel Chow, Anti-Counterfeiting Strategies of Multinational Companies in China
      ch. 6 Real Estate
      I. Brief History of China's Property Law Debate
      A. Forms of Property Ownership
      1. Granted Land Use Rights
      2. Allocated Land Use Rights
      3. Collective Land Use Rights
      4. Leased Land Use Rights
      5. Term of Land Use Rights
      6. Land Register
      B. Acquiring Land Use Rights
      1. Acquiring Granted Land Use Rights
      a. Acquiring Granted Land Use Rights Directly from the Land Bureau
      b. Acquiring Granted Land Use Rights by Transfer
      2. Acquiring Allocated Land Use Rights
      3. Acquiring Collective Land Use Rights
      4. Fees and Taxes
      C. Sample Land Transfer Contract
      Land and Use Rights Transfer Contract Between Beijing Panda Detergent Group and Ultra Bright Beijing Panda Co. Ltd
      II. Foreign Direct Investment in Real Estate
      A. FDI in Real Estate: the Early Years
      B. Restrictions on Foreign Investment in Real Estate
      1. Reforms
      2. Specific Legislative Decrees
      a. Circular 171
      b. MOFCOM Notice 50
      c. Circular 130
      d. Circular 4
      C. Pendulum Swings Back: Recent Developments
      1. Circular 23
      2. Circular 131
      3. Circular 546
      D. Applicable Taxes
      1. Real Estate Tax
      2. Business Tax
      3. Land Value Appreciation Tax
      4. Urban Land Use Tax
      5. Deed Tax
      6. Stamp Duty
      7. Taxes on Acquiring Existing Real Estate Projects
      Contents note continued: ch. 7 Taxation of Foreign Nationals and Foreign Investment Enterprises in China
      I. Introduction
      II. China's Tax System
      A. Taxation of Foreign Nationals in China
      B. History of Chinese Taxation of Foreign-Invested Enterprises
      C. Major Tax Laws Applicable to Foreign Investors in China
      1. Partnership Tax
      2. Enterprise Income Tax Law
      a. Who Must Pay Tax under the EIT?
      b. Resident and Non-resident Enterprises
      c. Effective Management and Control
      d. China Sourced Income
      e. Tax Rates under the EIT
      f. EIT Tax on Dividends
      g. Anti-Avoidance Measures Applicable to Corporate Income Tax
      h. Calculating the Tax Due under the EIT
      3. Value Added Tax
      a. Production-Based and Consumption-Based models
      b. VAT Calculation
      4. Consumption Tax
      5. Business Tax
      a. Taxpayers
      b. Taxable Items and Tax Rates
      c. Differences between VAT and Business Tax
      d. Major Exemptions
      ch. 8 Dispute Resolution
      I. Introduction
      A. Conciliation and Mediation in China
      B. Differences with the United States
      II. Arbitration
      A. CIETAC and other Arbitral Tribunals
      B. Jurisdiction over Claims Cognizable in CIETAC
      Award on Quality Dispute of Laser Processing Machine System
      C. Arbitration Agreement
      Polytek Engineering Co., Ltd. v. Jacobson Companies
      D. Enforcement of Arbitration Awards in China
      1. New York Convention Awards
      2. Foreign-Related Awards
      3. Domestic Awards
      E. Enforcement Issues
      III. Litigation
      China's Court System
      1. Structure and Organization
      2. Independence and Autonomy of the Courts
      a. Role of Courts in China's Legal Hierarchy
      b. Political Considerations
      c. Choice of Forum and Choice of Law
      d. Jurisdiction
      American Joint Venture Co., Ltd v. Yantai Branch of the Foreign Trading General Company in Shandong China
      3. Enforcement of Court Judgments.
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