Ruslan Lenivskyi: Legal framework for investment cooperation between Ukraine and PRC

Lenivskyi Ruslan

To ensure the proper functioning of the entire system of international economic relations, there is a set of legal norms, rules and procedures agreed between states and other subjects of international law. Until the 1980s, there was an internationalization of manufacturing, when national economies acted as centers that are developed independently. And at the turn of the century the formation of a new transnational systemic management of the world economy with its laws of legal regulation began.     

The rapid growth of foreign direct investment has become a hallmark of globalization. International investment cooperation has gradually developed from international legal protection to international legal regulation of foreign investment, from bilateral to multilateral agreements in the field of legal support of foreign investment activities.     

Interstate investment cooperation always acts as a catalyst for processes at all levels of the global economy. Globalization requires a clear coherence in legal regulation and often results in the lag of state regulation from the needs of development. This is especially noticeable in the field of international economic relations, including investment relations.      

International investment treaties are distinguished by a new approach in the development of investment cooperation, based on the fulfillment by member states of obligations to regulate investments and the establishment of control over the implementation of these obligations by the international dispute settlement procedure.   

The special role of contract law is explained by the specifics of the object of regulation, its importance in modern international law, as well as the peculiarities of the sources of law of international treaties. All this determines its special place in the system of modern international law. The investment process acts as a set of legal norms governing the relationship between the various participants in investment activities.       

From the unity of the subject of regulation of the investment process in a single and interdependent world, investment law is formed, consisting of two types and areas of legal regulation: national law and international law.   

States, adopting national laws and regulations, as well as concluding international treaties (or acceding to them), create a legal complex of two-tier legal norms and rules governing foreign investment activities in their territories.     


On December 30, 2020, at a video summit of EU and Chinese heads of state, negotiations on a comprehensive investment agreement were completed. Negotiations has started in 2013, lasted 7 years, consisted of 35 rounds, and despite the difficulties of the parties reached a consensus. The investment agreement between the European Union and China was an important step towards strategic cooperation between the EU and China and a testament to the great interest of all participants in a positive outcome.       

It should be noted that the relationship between Beijing and Brussels has its stimuli. Thus, for the Chinese side, one of the priorities remains the connection of its own strategic initiative "One Belt, One Road" and the EU strategy for economic relations with Asia, the implementation of which is currently complicated by the pandemic and US pressure on Beijing and its partners.    

For its part, the European Union is seeking to facilitate European companies' access to sectors of the Chinese market closed to foreign direct investment. In addition, Brussels does not agree with Beijing's policy of forcing European companies to transfer technology and know-how to joint ventures with Chinese partners. After all, Brussels has long expressed dissatisfaction with China's policy of state subsidies to a number of industries, seeing this as a manifestation of unfair competition.      

The conclusion of the negotiations is a significant event against the background of the global economic downturn. The European Union makes it clear that its line in relations with Beijing does not automatically copy the course of the transatlantic allies. Last year, amid a general decline in Chinese exports and imports caused by unfavorable macroeconomic conditions due to the pandemic, falling oil prices and tensions with the United States, business cooperation with the EU became a powerful engine for China 's relations with the West.       

Over the past decade and a half, the EU has established itself as China's leading business partner, and for China, the European Union has become the second largest partner after the United States. This investment agreement is designed to provide a fundamentally new approach of EU supranational institutions to the regulation of investment cooperation, complementing the process of combining national mechanisms for monitoring and evaluation of foreign direct investment of EU member states.        

A number of commitments made by the Chinese side should be singled out. First, European investors are significantly expanding access to sectors of China's economy such as telecommunications, cloud computing, biotechnology development, and health care, which were previously positioned as critical to national security and closed to foreign investors. This agreement was signed in the conditions when from 2021 in China there will be a legislative regulation of foreign direct investment (FDI), aimed at expanding the admission of foreign investors to work in the domestic market.          

Second, China has committed itself to disclosing information on government subsidies in the services sector and to consulting on subsidies that may harm the interests of EU investors in the Chinese market.  

Third, China is committed to raising standards in the field of labor protection and the environment, applying the rules of international regulation: the Paris Climate Agreement, the International Labor Organization convention.

The proposed system of dispute resolution deserves special attention: within the framework of the agreement, the parties agreed to use a system of bilateral permission, the same as in trade agreements - state-to-state dispute settlement. This system replicates the WTO model, where each party nominates a representative to the arbitration commission, and then the members of the commission elect their chairman from a third (independent) party.

This system will be complemented by a monitoring mechanism, which is planned to be set up at the political stage and will deal with pre-trial consideration of controversial issues. The talks also outlined rules and procedures for protecting companies' intellectual property from forced technology transfer, including monitoring agreements aimed at gaining control over technology.

Within the framework of the agreements reached, the issue of monitoring the investments of state corporations was separately identified. The investment agreement will strengthen control over the activities of such companies. In particular, the Chinese side undertakes to provide all necessary information to assess the actions of corporations for compliance with the provisions of the investment agreement. In case of violation of the terms of the agreement, the procedure of consideration of the case in the arbitral tribunal is provided.

On January 4, 2021, Ukraine and the People's Republic of China celebrated the 29th anniversary of the establishment of diplomatic relations between the two countries. The legal framework formed by the investment agreement between the EU and China is of practical importance for Ukrainian lawyers who care about reforming and improving investment legislation. Ukrainian experts are carefully studying the experience of reaching a complex consensus by our European and Chinese counterparts through legal regulation.

kytay zakon



Since the beginning of the economic reform in 1978, China has pursued a targeted policy to stimulate the inflow of foreign investment into the national economy. Increasing the volume of foreign investment and improving the efficiency of their use are considered by the Chinese leadership as priority goals.

At present, the achievements in this area have contributed to the solution of such economic problems as the development of China's economy in conditions of limited domestic funds, the transition of the national economy to market relations, modernization of the economy through the introduction of modern equipment and technology, integration of the economy into the world economy, raising living standards and employment. 

The main work on regulating the inflow of foreign capital to China is performed by the State Council of the PRC, the State Committee for Reform and Development, the Ministry of Commerce, the Ministry of Foreign Affairs, the Ministry of Finance, the State Committee for Banking Supervision, the State Customs Administration, the China International Chamber of Commerce, the Commerce and Industry Administration Office to attract investment to the People's Republic of China.

 The regulatory framework governing investment activities in China is defined by the following documents: the Law of China "On Enterprises with Foreign Capital", 1986; the  Law of China "On Joint Ventures with Foreign Capital", 1979; the "Regulations of the People's Republic of China on the Application of the Law on Enterprises with Foreign Capital", 1990; the Law of China "On Joint Stock Companies", 1979; the "Temporary rules for the establishment of joint foreign trade companies in China", 2003; the Law of China "On Companies"; the Law of China "On Enterprises with 100% Foreign Capital", 1986; the "Rules for the operating of representative offices of foreign law firms in the PRC"; Regulation "On the procedure for registration of investment projects in the PRC".       

In March 2002, the State Council of the PRC issued a resolution regulating the further development of China's cooperation with foreign investors. On this basis, the State Committee for Planning and Development, the State Committee for Economic Affairs and Trade and the Ministry of Foreign Trade of the People's Republic of China published a special "Catalog of sectoral and regional priorities for attracting foreign investment."      

Unlike the 1995 catalog, the new catalog provided a greater degree of liberalization. According to the new Catalog, all branches and spheres of activity of the Chinese economy (371 in total) are divided into four categories in terms of cooperation with foreign investors:

1) encouraged - an increase in the number from 186 to 262 points; 

2) allowed; 

3) limited - a decrease  from 112 to 75; 

4) prohibited. 

Since joining the WTO, China has significantly liberalized the legislation governing the activities of foreign investors in the domestic capital market.       

In particular, in April 2003, the Ministry of Commerce of the People's Republic of China issued a Regulation on Mergers and Acquisitions between Companies Registered in China with Foreign Capital and Chinese Entrepreneurs of Any Form of Ownership, which established that companies owned by foreign investors could merger with a Chinese enterprise of any form of ownership, fully or partially repurchased its share capital or assets.        

In 2004, the State Council issued a resolution "On the reform of the investment system", which emphasizes the intention to continue the policy of openness of the Chinese economy to foreign investors as one of the main state political institutions. The main direction of the reform of the investment system is further simplification of the procedure for approving investment projects, expanding the competence of provincial governments on projects to attract investment.       

The established procedures and rules are considered in the "Regulations of the People's Republic of China on the Application of the Law on Enterprises with Foreign Capital." According to the provisions of the establishment of foreign capital enterprises must not only contribute to the economic development of the Chinese nation, lead to economic efficiency, as well as meet at least one of the following conditions:     

  1. The enterprise must use advanced technology and equipment, develop the production of new products, save energy and raw materials, produce high-quality products that can replace imported ones.  
  2. The value of products exported during the year must exceed 50% of the value of all annual products, the balance of income and expenses in foreign currency must be carried out or foreign exchange earnings must exceed expenses. Applications for the establishment of an enterprise with foreign capital are not approved in the presence of one of the following circumstances:       

➡ restriction of China's sovereignty or threat to public interests; 

➡ threat to China's national security; 

➡ violation of Chinese law;

➡ non-compliance with the requirements of the development of the Chinese national economy; 

➡ the possibility of environmental pollution.  

In general, this Regulation regulates, provides transparency and thus significantly facilitates the inflow of foreign investment into China in the form of acquisition and restructuring of existing Chinese enterprises.  

Scientific and technological cooperation is an integral part of investment cooperation. One of the conditions for effective commercial sale of scientific and technical products is its legal protection. In China, the protection of intellectual property rights is regulated by such laws as: Patent Law, Trademark Law, Copyright Law, Unfair Competition Law , as well as Provisions prohibiting actions resulting in the dissemination of trade secrets, Regulations on regulation of export and import of technologies.     

However, if we talk about a real legal system that protects intellectual property rights, the legal system of China is generally in line with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), although the issue of improving the system on some issues remains relevant.


On January 1, 2020, the Law of the People's Republic of China on Foreign Investment entered into force. The law opens wide opportunities for foreign companies and repeals three basic laws governing the activities of investors. Now foreign companies in China are guaranteed equal rights and responsibilities with domestic investors, as well as the right to enjoy national status in investment activities in China.

The law applies to foreign investors operating in China. Foreign investment is investment activity carried out in China by foreign enterprises or individuals who:

➡ create companies in China; 

➡ acquire shares of Chinese enterprises or shares in the authorized capital, property; 

➡ make investments in new projects in China; 

➡ invest in other forms described in the laws of the PRC.

The new law guarantees state support to companies with foreign capital. The public procurement program opens opportunities to buy goods produced at enterprises with foreign investment, on the same terms as domestic companies. The law also stipulates that neither civil servants nor government agencies have the right to force foreign-invested companies operating in China to transfer technology.

Areas of participation of foreign investors are regulated. Foreign investments are not allowed according to negative admission lists. Investors can invest money only if they meet the conditions set out in the negative lists. In those areas that are not included in the negative lists, a foreign investor can invest on the same terms as domestic investors.

The government will take measures to stimulate foreign investment and simplify the procedure for their implementation. Enterprises with foreign participation can participate in the discussion of investment laws, make comments and suggestions on the proposed innovations, as well as participate in the development of standards for investors.

The state advises investors on laws and regulations governing investment. China is creating various systems of investment cooperation, expanding exchange and cooperation in the international investment sphere. The flow of foreign investment is regulated in some regions. Special economic zones are also being created for the comfortable development of projects.

Foreign investors receive state-provided benefits, and their investments are encouraged and directed to specific regions, industries and spheres. A foreign company can attract financing in any way and publicly place bonds, shares and other securities. The employees of the authorized bodies undertake to maintain the confidentiality of the information received during the performance of official duties.

The new law provides state protection of intellectual property of the investor and gives him the right to freely withdraw from the territory of China their investments and profits. The state guarantees not to allow the forcible seizure of foreign investment, such seizure can only be in special circumstances. The law protects investors from the application of additional obligations and conditions that are not prescribed by law.

The state monitors and verifies the security of foreign investment. If investing in a certain area requires a license, the investor must obtain it, otherwise the activity will violate Chinese law.

The rules for obtaining a license are the same for all investors. Enterprises engaged in production and economic activities are required to comply with the requirements for labor protection and social security that exist in China. Their activities are subject to control, in particular unmonopoly.     

The new law not only takes into account the needs of investors, but also provides for liability for violations. If a foreign investor invests in prohibited areas, he receives an order demanding the cessation of its activities. It is also possible to alienate property and shares or confiscate them if they were obtained in violation of applicable law. When violations are detected, the authorized body issues an order demanding to eliminate them. In case of refusal or non-compliance with the requirements, the measures described above are applied.       

If a foreign investor does not submit investment reports to the authorized bodies, he is issued an order to eliminate the violation within a specific period. In case of violation of this term, the investor is fined. The responsibility also extends to the employees of the authorized bodies of the PRC. For disclosure of trade secrets, negligence, mistakes in the performance of official duties, they are subject to criminal liability. When discriminating against foreign investments in China, the state retains the right to take retaliatory measures.       

A characteristic feature of Chinese law is that legislation is drafted slowly, thoroughly, and infrequently. Provisions developed in the development of laws are usually approved four years after the laws themselves. It is the careful elaboration of details in Chinese law, especially in bylaws, that contributes to the implementation of the provisions in practice.     

China creates favorable conditions for investment activities on fair competitive terms and at the same time obliges investors to comply with Chinese law and not to conduct activities that pose a threat to China's national security . At the same time, the Chinese government is already concerned about the outflow of capital from the country and is beginning to tighten control over investment flows, which lead to a reduction in total investment from the country. Potential investors have begun to be more cautious in choosing countries / facilities for financing, carefully weighing economic and geopolitical risks.

ukraina i kytay


Not only Western countries are interested in Ukraine. In an interview ащк HBO's Axios journalist, President Volodymyr Zelenskyi stressed that regardless of the nation, if people, business, and a particular country treat you with respect, respect for your people and borders, they can be present in your country.     

Ukraine highly values ​​the strategic partnership with China and is interested in maximizing the powerful potential of bilateral cooperation. Further liberalization of bilateral trade and deepening investment cooperation will be an important impetus for economic recovery and overcoming the negative effects of the pandemic in our countries.    

One of the first steps to regulate investment relations in Ukraine was the adoption by the Verkhovna Rada of Ukraine of the laws of Ukraine "On Protection of Foreign Investments in Ukraine" and "On Investment Activity" in 1991. This legislation aims to protect investments, profits, legal rights and interests foreign investors in Ukraine. The law defines the legal regime of foreign investors and state guarantees for investment activities in Ukraine.      

And the main direction of the Law of Ukraine "On Investment Activity" is to ensure equal protection of rights, interests and property of investment entities regardless of ownership, as well as effective investment in Ukraine's economy, development of international economic cooperation and integration.     

In 1992, wishing to encourage, protect and create favorable conditions for investment, the Government of Ukraine and the Government of the People's Republic of China signed an agreement.  

Peculiarities of the foreign investment regime on the territory of Ukraine were established by the Law of Ukraine "On Foreign Investment Regime" of 1996. The provisions of this Law regulate relations, in particular regarding state guarantees of foreign investment protection, state registration and control over investments, foreign investment enterprises, disputes, etc.

The Law of Ukraine of 2000 "On Elimination of Discrimination in Taxation of Business Entities Created with the Use of Property and Funds of Domestic Origin" is of great importance. It aims to protect competition between business entities created without raising funds or property (property or non-property rights) of foreign origin, and business entities created with the participation of foreign capital, ensuring state protection of domestic producers and constitutional rights and freedoms citizens of Ukraine.

A special place in the system of investment legislation is occupied by the Law of Ukraine “On Mutual Investment Institutions (Mutual and Investment Funds)” adopted in 2001, which defines the legal and organizational bases of creation, activity and responsibility of mutual investment entities, features of their assets management the composition, structure and storage of assets, features of placement and circulation of securities of mutual investment institutions, the procedure and scope of information disclosure by mutual investment institutions in order to attract and effectively allocate financial resources of investors, etc.

The peculiarity of domestic investment legislation is that certain aspects in the investment sphere, in addition to the above regulations, are also regulated by economic, tax, currency, banking, financial, customs, civil and land legislation, legal acts on privatization, entrepreneurship, innovation, securities and stock market, concessions, etc.

State regulation in the investment sphere is also carried out with the help of a significant number of decrees of the President of Ukraine, resolutions and orders of the Cabinet of Ministers of Ukraine, etc. A significant part of domestic legislation is made up of international legal acts to which Ukraine is a party: multilateral international agreements, conventions, which are aimed at both the protection of foreign investment and the settlement of other issues.  

In 2010, the Law of Ukraine “On Public-Private Partnership” was adopted - a normative legal act that laid the foundation for stimulating the development of cooperation between the public and private sectors. This Law is a framework and is designed to define the basic principles of public-private partnership, in particular:    

  • equality before the law of public and private partners in carrying out activities within the framework of public-private partnership;  
  • prohibition of any discrimination and restriction of the rights of private partners, except as provided by law; 
  • coordination of the interests of public and private partners in order to achieve mutual benefit and achieve the goal of public-private partnership;  
  • fair distribution of risks associated with the implementation of agreements concluded within the framework of public-private partnership.  

Maximum simplification for the investment entity of the procedure for obtaining services related to the preparation and implementation of investment projects by introducing the principle of "single window", designed to ensure the Law of Ukraine "On preparation and implementation of investment projects on the principle of "a single window" 2010.     

Regarding the cooperation of our country with China, the Ukraine-China People's Republic Action Plan for the implementation of the joint construction initiative "Silk Road Economic Belt" and "Maritime Silk Road of the XXI Century" was added to the effective mechanism of the Commission for Cooperation between the Government of Ukraine and the Government of China in 2017" (hereinafter - "One belt, one way"). The parties agreed to jointly promote the implementation of cooperation projects and the "One Belt, One Road" initiative and to strengthen cooperation.       

Within the framework of the Subcommittee on Trade and Economic Cooperation of the Commission on Cooperation between the Government of Ukraine and the Government of the People's Republic of China, the parties agreed to promote cooperation between enterprises and financial institutions of both countries. According to the mutually beneficial principle, the parties will unite efforts in trade, in particular agricultural products, carry out work on large-scale projects in the fields of infrastructure and energy, including renewable energy, actively develop cooperation in high technology, expand and invest in investment. entrepreneurs.          

In general, the analysis of the state of legal regulation in the investment sphere of Ukraine shows that the investment legislation needs further improvement, because despite the extensive system of legal acts, it is premature to talk about a holistic, mutually agreed and competitive system of legislation.    


Chinese investments in Ukraine's economy over 29 years have been estimated at $ 40 million to $ 300 million. Chinese, as well as other foreign investors, are repelled by the negative experience of investing in Ukrainian business, the inability to withdraw funds or leave the project without financial losses, tax laws, corruption, the specifics of our worldview, lack of government guarantees, lack of qualified professionals in Ukraine. A comprehensive program to improve Ukraine's investment climate and the country's image in the eyes of foreigners is needed.         

We must admit that Ukraine is not very good at resolving conflicts with investors. The number of disputes that countries cannot resolve amicably or through the local judiciary can be compared. In this case, investors go to the International Center for the Settlement of Investment Disputes (ICSID) at the World Bank. For example, as a plaintiff, Vietnam and Cambodia appear in the ICSID only once, Laos and Malaysia - 3 times, the Philippines - 5, Indonesia - 8. Even in the vast China - only 3 such cases. For comparison, in Ukraine there are 15 of them, including two active ones. Perhaps it is time to get rid of the negative trail by studying and borrowing the experience of regulating the investment activities of our European and Chinese partners?             

In December 2020, the international conference "Ukraine: an investment haven in times of change" was organized by the Government Office for Attracting and Supporting Investments UkraineInvest with the support of the USAID Competitive Economy of Ukraine Program. Gathering online about 1,000 participants from more than 60 countries, the event became an interactive platform for informing the international and Ukrainian investment community about the progress of reforms and the development of the investment climate in Ukraine during 2020.      

During the event, the strategic plans of the state for 2021 were outlined , in particular the priority of the Strategy for Attracting Investments in the Economy of Ukraine. Representatives of the Government announced the strengthening of their role in the development of dialogue between the state and business and initiated a number of measures aimed at improving the business climate.   

In December, the Parliament passed the Law № 3760 on “investment nannies”, and in February 2021 the President of Ukraine signed a law guaranteeing state support for projects with significant investments. The law stipulates that state support may be provided in the following forms:  

  • exemption from paying certain taxes and fees
  • exemption from import duty of new equipment (hardware) and components imported for the implementation of the investment project
  • preemptive right to use a land plot of state or communal property (transfer for use or lease on the terms determined by a special investment agreement and with a preemptive right to acquire such a plot after the expiration of the contract)
  • the state assists the investor with known investments in the process of connection to the networks of heat, gas, water and electricity supply, utilities, etc., belonging to the subjects of natural monopolies
  • construction of highways, communication lines, means of heat, gas, water and electricity supply, utilities, etc., necessary for the project, at the expense of state and local budgets 

The law also sets clear requirements for the investment project:

1) it must be a project in the field of processing industry (except for activities for the production and circulation of tobacco products, ethyl alcohol, cognac and fruit, alcoholic beverages), extraction for further processing and / or enrichment of minerals (except coal and lignite), crude oil and natural gas), waste management, transport, warehousing, postal and courier activities, logistics, education, scientific and research activities, health, art, culture, sports, tourism or resort and recreational sphere;        

2) such a project provides for the construction, modernization, technical and / or technological re-equipment of investment objects, purchase of equipment and components for it, and may also provide for the construction of related infrastructure facilities at the expense of the investor;    

3) creation of at least 80 new jobs during the project implementation period. The average salary of employees must be at least 15% higher than the average salary for the relevant type of activity in the region of project implementation for the previous year;    

4) the amount of investment during the project must exceed an amount equivalent to 20 million euros at the official exchange rate; 

5) the term of implementation of the investment project with significant investments does not exceed five years.  

State support does not apply to investment projects that meet the characteristics of public-private partnership, and is not provided during the privatization of state and municipal property. The law has an unambiguous list of those who cannot apply for state support.  

For state support of a project with significant investments, the investor must apply to the authorized body, which must evaluate the project within 60 days and provide an opinion on the feasibility or inexpediency of the project (can be appealed in court). Such a body may be the Ministry of Economic Development and Trade of Ukraine.      

If the authorized body deems the project expedient, it shall send it to the Government and the relevant local self-government body within 30 working days. Within a month, the Government decides on the conclusion of a special investment agreement and appoints a person authorized to sign it by the state.     

The experts believe that the priority ways to attract foreign investment should be:  

➡ completion of the formation of the relevant regulatory framework (domestic legislation has some shortcomings: instability and unreliability, lack of complexity and inconsistencies in legislation. Instability makes it impossible to predict the production, economic and financial activities of investment objects);       

➡ further reform of the tax system: simplify business taxation, reduce the tax burden and provide additional benefits to foreign investors in order to increase the tax competitiveness of the domestic economy;    

➡ investors who invest financial resources in underdeveloped regions need to be given additional preferences;   

➡ promoting the development of stock market institutions;  

➡ strengthening the financial and credit system, the creation of non-bank financial institutions, especially leasing and insurance companies, venture funds;    

➡ promoting the development of venture business, this requires the intensification of the development of the domestic stock market and state assistance in the placement of securities of venture funds of the primary issue;    

➡ stimulating the attraction of investments in scientific, technical and innovative activities;

➡ advertising of Ukraine's investment advantages in the international media and holding thematic conferences for businessmen;    

➡ transfer of land, mineral, forest and water resources to potential investors for long-term lease, provided that they organize production of products with a high degree of processing in Ukraine;   

➡ continuous improvement of the domestic road and rail transport network, with the priority development of connections between the Black and Baltic Seas and between Europe and Asia;   

➡ conducting a prudent financial policy to stabilize the macroeconomic environment, which will help create a favorable investment climate and overcome obstacles to attracting foreign investment;   

➡ developing a detailed government strategy to encourage investment, it would also be useful to create a portal for investors to provide them with informational support on legislative changes.    

As wise people say, there is no shortage of free money in the world, there is a shortage of attractive ideas. Therefore Ukraine for successfully attracting FDI requires joint efforts of professional legislators, government agencies, diplomatic corps, business structures and experts of international relations. The government has ambitious goals, and lawyers consider it their task to build a modern sustainable regulatory investment base that will not be affected by short-term factors.          


the President of "Ty i Pravo" Lenivskyi Group, the Member of the Board of the Ukrainian Association of Sinologists

Read 664 times