Special Administrative Measures for Cross-border Trade in Services in Hainan Free Trade Port
Release time: 2022-05-20 17:25 Source: 投资海南
In the high-quality development of China, the scale of service trade has continued to expand, making it the only developing country among the top five service trade countries in the world. According to estimates, the scale of China’s service trade market is expected to reach trillions of yuan in the future. As emphasized by General Secretary Xi Jinping, China will unswervingly expand its opening up, establish and improve the negative list management system for cross-border trade in services, promote the establishment of a pilot open platform for the innovative development of trade in services, continue to relax market access for the service industry, and actively expand the import of high-quality services.
Ministry of Commerce issued the Special Administrative Measures for Cross-border Trade in Services in Hainan Free Trade Port (Negative List) (2021 Edition), which is the first negative list announced by China in the field of cross-border service trade. The list clearly defines 70 special management measures in 11 categories for overseas service providers. In all areas outside the list, domestic and foreign service providers shall be treated equally and have equal access in cross-border trade in services in Hainan FTP. Such an institutional opening arrangement is a major breakthrough in the management model of service trade. It not only helps to promote the liberalization of service trade, but also demonstrates China's determination to continue opening up.
Special Administrative Measures for Cross-border
Trade in Services in Hainan Free Trade Port
1. Agriculture, forestry, animal husbandry and fishery
Individuals and fishing vessels from outside China shall obtain approval from the Chinese government if they enter waters under Chinese jurisdiction to conduct fishery resources investigation. Treaties or agreements concluded with China shall be applicable if there is any.
Overseas service providers shall not provide construction and related engineering services.
3.Wholesale and retail trade
Overseas service providers shall not directly sell veterinary drugs, feeds, feed additives and pesticides, and shall set up sales agencies in China or entrust qualified agents in China to sell them.
Overseas service providers shall not engage in the wholesale, retail, import and export of tobacco leaves and tobacco products in China.
4.Transportation, storage and postal services
Overseas service providers are only allowed to engage in international transport at ports open to overseas ships. Otherwise, overseas service providers shall not operate domestic water transport business, and shall not charter Chinese ships or shipping space to operate domestic water transport business in disguise. Chinese water transport operators shall not use foreign vessels to operate domestic water transport business. However, in case there is no Chinese vessel that can meet the transport requirements for the application, and the ports or waters where the vessels call are ports or waters open to the outside, with the permission of the Chinese government, the domestic water transport operators may temporarily use foreign vessels for transport within the time limit or voyage set by the Chinese government.
Foreign vessels other than yachts shall apply for pilotage to the local pilotage authorities when entering or leaving the Hainan Free Trade Port, sailing in its inland rivers, sailing in its ports, shifting berths, and docking at or leaving mooring points or loading and unloading stations outside the ports. If there is an agreement between China and the country of origin of the vessel, the agreement shall be complied with first.
No individual from abroad shall be registered as a pilot.
Overseas service providers shall participate in the salvage of sunken ships and articles in coastal waters by signing joint salvage contracts with Chinese salvage operators. Chinese salvage operators shall, under the same conditions, have priority in hiring and leasing vessels, equipment and labor services from overseas service providers to fulfill the joint salvage contracts.
For the cross-border delivery of computer reservation system services, only the following circumstances are allowed: (1) If an overseas computer reservation system enters into an agreement with a Chinese air transport enterprise or a Chinese computer reservation system, it can provide services to Chinese air transport enterprises and Chinese air agents through connection with the Chinese computer reservation system; (2) Overseas computer reservation system may provide services to the representative office or business office established in navigable Chinese cities by overseas air transport enterprises which have the right to operate in accordance with bilateral aviation agreements; (3) The direct entry and use of an overseas computer reservation system by the sales agents of Chinese air transport enterprises and overseas air transport enterprises shall be approved by the competent civil aviation authorities of China.
Overseas service providers shall not engage in China’s civil aviation air traffic management services, including air traffic control, surveillance of communication and navigation, and navigation intelligence, and shall not engage in civil aviation air traffic control and aviation intelligence training services.
No foreign individual shall apply for a license for civil aviation intelligence officer or civil aviation air traffic controller.
The overseas pilot schools that conduct pilot license and grade training for Chinese air operators, and whose qualified pilots that return to China to exchange for the corresponding pilot license of CAAC in accordance with the simplified procedures shall meet the following requirements: (1) The country of origin is a party to the Convention on International Civil Aviation. The school has an aviation operation certificate or similar approval issued by the civil aviation authority of the country where it is located; (2) Having obtained permission from the Chinese government.
No foreign vessel shall, without the approval of the Chinese government, conduct towage operations between Chinese ports in any manner.
The master of a ship of Chinese nationality shall be a crew member of Chinese nationality.
A foreign international road transport operator shall not engage in the road passenger transport business whose place of origin and destination is within China.
Overseas service providers shall not operate Chinese express mail business.
Overseas service providers shall not provide postal services.
5.Information transmission, software and IT services
China implements a licensing system for telecommunications business operations. Only a company lawfully established within the territory of China may engage in telecommunications business after obtaining a telecommunications business license.
International communications business must be conducted through the International Communications Export and Import Bureau established with the approval of the competent authorities of the Information industry in China. A wholly state-owned telecom operator shall apply for the establishment, assume the operation and maintenance of the International Communications Export and Import Bureau, and the establishment of the latter shall be approved by the competent department governing industry and information technology.
Overseas organizations or individuals are not allowed to conduct radio wave parameter testing or radio wave monitoring.
An overseas company providing communications satellite resources leasing services to a Chinese company shall comply with China’s regulations on the management of satellite radio frequencies. On the premise of completing the coordination with the satellite radio frequency declared by China, the communications satellite resources shall be leased to the Chinese company with corresponding operating qualifications, and then the Chinese satellite company shall sublease the resources to domestic users, and shall be responsible for technical support, marketing, user service and user supervision. Foreign satellite companies are not allowed to lease satellite transponders directly to Chinese users without the approval of the Chinese government.
Overseas service providers shall not engage in Internet news and information services or Internet public information release services.
An overseas service provider that fails to meet the requirements for establishing a commercial presence and the relevant share ratio shall not provide Internet information search services.
Insurance companies established in accordance with Chinese law and other insurance organizations prescribed by laws and administrative regulations may operate insurance businesses only within the territory of China. Insurance services other than insurance brokage provided by means of overseas consumption and the following insurance services provided by means of cross-border delivery shall not be subject to the above restrictions: reinsurance; international maritime, air and transportation insurance; large commercial insurance broker, international marine, air and transportation insurance brokage and reinsurance brokage.
Without the approval of the China banking regulatory body, overseas service providers shall not, by means of cross-border delivery, engage in the business activities of banking financial institutions, financial asset management companies, trust companies, finance companies, financial leasing companies, consumer finance companies, auto finance companies or other financial institutions whose establishment is approved by China’s banking regulatory authorities.
Currency brokerage companies established only within the territory of China with approval may engage in the currency brokerage business.
A limited liability company or a joint stock limited company established only within the territory of China while being a non-financial institution legal person can apply for a Payment Business License to engage in non-financial institution payment services.
Securities companies established in China only under Chinese law may, upon approval, operate the following securities businesses :(1) securities brokerage; (2) securities investment consultation; (3) financial advisers related to securities trading and securities investment activities; (4) securities underwriting and sponsoring; (5) securities margin trading; (6) market-making transactions in securities; (7) securities proprietary business; (8) other securities business.
The provision of services by means of overseas consumption and the provision of the following services by means of cross-border delivery are not subject to the restrictions of Section 28: (1) Overseas securities operating institutions that have obtained the business qualification of Chinese listed foreign shares (B shares) may engage in the brokerage business of domestic listed foreign shares by signing an agency agreement with domestic securities operating institutions, or by other means stipulated by the stock exchange; (2) The overseas securities operators that have obtained the approval for domestic listed foreign stocks shall act as the lead underwriter and deputy lead underwriter and international affairs coordinator of domestic listed foreign stocks; (3) When an approved QDII conducts overseas securities investment business, it may entrust overseas securities service institutions to buy and sell securities on behalf of them; (4) Approved QDII can entrust qualified overseas investment consultants to make overseas securities investment; (5) Overseas assets custodian entrusted by the custodian to take charge of overseas assets custody business shall meet legal conditions.
The following circumstances shall not be provided through cross-border delivery: (1) A fund management company established only in accordance with the Chinese law or other institutions approved by the Chinese securities regulatory agency in accordance with the provisions may act as the manager of publicly offered securities investment funds; (2) Only companies or partnerships established in China that meet the legal conditions can apply for registration as private equity fund managers; (3) Only commercial banks or other financial institutions approved by China’s securities regulatory authorities that are established in accordance with Chinese law and have obtained the trusteeship qualification of securities investment funds can act as custodians of securities investment funds; (4) When an approved QFII invests in domestic securities and futures, it shall entrust a qualified domestic institution as the custodian of the assets. When an approved domestic institutional investor conducts overseas securities investment business, a domestic commercial bank shall be responsible for the asset custody business. (5) Only institutions (including public fund managers) established in accordance with Chinese law and registered with Chinese securities regulatory authorities and their dispatched offices, while being qualified for public fund sales, may engage in fund sales business; (6) Without approval or registration, no domestic institution or individual shall engage in the issuance and trading of securities overseas.
Securities operating institutions and other consulting institutions established in accordance with Chinese law may engage in securities investment consulting business upon approval.
Futures companies established in China only in accordance with the Laws of China can operate the following futures businesses on the basis of licenses issued by China’s futures regulatory authorities in accordance with the types of commodity futures and financial futures: domestic futures brokerage, overseas futures brokerage, futures investment consulting and other futures business as stipulated by the China futures regulatory authorities. Futures companies established in China only in accordance with the Chinese law may engage in asset management business after registration and filing in accordance with the requirements of China’s futures regulatory authorities.
Commercial banks established only in China can apply for the qualification of futures margin depository banks.
Unless otherwise stipulated by China’s securities regulatory authorities or other relevant departments, no domestic company or individual shall engage in the business of overseas futures and other derivatives. No overseas company or individual shall engage in the business of domestic futures and other derivatives.
Futures companies and other futures operating institutions established only in accordance with Chinese law may engage in futures investment consulting business. Overseas individuals living in Hainan Free Trade Port can apply for the qualification of futures investment consulting.
The trustee, custodian and investment manager of the enterprise annuity legal person shall be approved by the Chinese financial regulatory authorities and shall be a legal person in China.
The enterprise annuity account manager shall be approved by the Chinese government and be a Chinese legal person.
No overseas enterprise or individual may become an ordinary member of a stock exchange. No overseas enterprises or individuals may become members of a futures exchange. Overseas enterprises or individuals are not allowed to open securities or futures accounts except for overseas individuals working in Hainan Free Trade Port or unless otherwise stipulated by China. No more than one regional equity market operation institution shall be established in Hainan Free Trade Port. Regional equity markets shall not provide services for the financing and transfer of private equity securities or equity of enterprises outside Hainan Free Trade Port.
Foreign futures exchanges and other overseas institutions shall not designate or establish warehouses for commodity futures delivery in China or engage in other activities related to commodity futures delivery.
Clearing banks for overseas RMB business, overseas central banks (including foreign central banks (monetary authorities) and other official reserve managers, international financial organizations, and sovereign wealth funds) and overseas participating banks for RMB purchase and sale business that meet certain conditions may become overseas members of China’s inter-bank foreign exchange market upon application and participate in transactions in the inter-bank foreign exchange market.
7.Leasing and business services
Foreign law firms, other overseas organizations or individuals shall not engage in legal services in China under any other name than the representative office of an overseas law firm in China (except when Hainan’s law firms employ foreign lawyers as foreign law advisers and lawyers from Hong Kong and Macao as legal advisers).
The representative offices of foreign law firms in China and their representatives shall not engage in Chinese legal affairs (except that the representative offices of foreign law firms in Hainan engage in some non-litigation legal affairs related to Hainan’s commercial affairs). Representative offices of foreign law firms in China shall not employ Chinese practicing lawyers. The auxiliary personnel employed shall not provide legal services for the parties concerned. The representative of the representative office and its auxiliary personnel shall not provide Chinese legal services to clients in the name of “Chinese legal counsel”.
The representative offices in China of overseas law firms and the overseas law firms themselves shall not assign personnel to engage in legal service activities in Law firms in China.
Only notarial offices established within the territory of China may provide notarial services. The total number of notarial offices established shall be controlled. Only Chinese citizens who have passed the Chinese judicial examination or the unified legal professional qualification examination can serve as notaries.
Overseas individuals are not allowed to participate in the national uniform legal professional qualification examination to obtain the legal professional qualification certificate.
Only legal persons or other organizations established within the territory of China can apply to engage in forensic expertise. Only Chinese citizens can apply to engage in forensic expertise.
Overseas service providers can only provide statutory audit services through commercial presence. Overseas service providers can only provide bookkeeping services through commercial presence.
Overseas organizations or individuals shall not directly conduct social investigations or conduct social investigations through institutions that have not obtained a foreign-related investigation permit. Overseas service providers who have been qualified and obtained a foreign-related investigation license may conduct market research.
Overseas service providers shall not provide human resources services (including but not limited to human resource agency services and job agency services), and shall not directly recruit labor to work abroad.
Overseas individuals are not allowed to serve as security guards for security services. Overseas service providers can only provide security services through commercial presence.
The holding of international exchange and trading activities shall be approved by China’s radio and television administrative authorities, and shall be undertaken by designated units. The holding of international film festivals (exhibitions) and national film festivals (exhibitions) with awards shall be approved by China’s film authorities. With the approval of Hainan film authorities, film screening activities of a single country or Hong Kong SAR, Macao SAR and Taiwan Province can be held.
Overseas individuals are not allowed to apply for the national tour guide qualification examination.
8.Scientific research and technical services
Overseas service providers may provide urban planning services other than master planning services, but they must cooperate with Chinese professional institutions. Urban design other than statutory planning and preliminary scheme study of statutory planning may not be subject to this restriction.
Overseas service providers shall cooperate with Chinese professional institutions to provide preliminary design (basic design), construction drawing design (detailed design), engineering and centralized engineering services other than scheme design by way of cross-border delivery.
The application of foreigners to participate in the national unified examination and registration of registered architects in China and the application of foreign architects to carry out the business of registered architects shall be handled in accordance with the principle of reciprocity.
Without approval, no overseas organization or individual may engage in surveying and mapping, meteorological, hydrological, seismic and ecological environment monitoring, marine scientific research, laying of submarine cables and pipelines, exploration and exploitation of natural resources or other activities in Chinese territory or other sea areas under Chinese jurisdiction.
Overseas institutions providing education services shall not hold educational examinations independently, except for the educational examinations for non-academic qualifications held in cooperation with Chinese educational examination institutions.
Overseas individuals providing education services that are invited or employed by schools and other educational institutions in Hainan Free Trade Port can provide education services in China. Such individuals must hold a bachelor’s degree or above, and must have corresponding professional titles or certificates.
10.Health and social work
For foreign doctors who have obtained the legal right to practice medicine in foreign countries, if they are invited, employed or applied to China for clinical diagnosis, treatment or other activities, the registration period shall not be more than one year. If the registration period needs to be extended, they can re-register according to regulations.
11.Culture, sports and entertainment
Overseas service providers shall not engage in the business of editing, publishing and producing books, newspapers, periodicals, audio-visual products and electronic publications, and shall not engage in online publishing (including online games) services. Contents of China’s WTO accession commitments are not subject to the restriction.
Joint press and publication projects conducted by Chinese and foreign press and publication entities shall be approved by the Chinese government, and shall ensure the Chinese side’s leading right of operation and the right of final adjudication of content, and meet other conditions approved by the Chinese government. The project cooperation in online publishing services between online publishing service providers and domestic foreign-invested enterprises or overseas organizations and individuals shall be submitted to the Chinese government for approval in advance. Overseas service providers are not allowed to reproduce audio and video products and electronic publications without approval.
Films shall be shown in accordance with the proportion of showing time set by the Chinese government for domestic and imported films. Cinemas shall not show domestic films for less than two-thirds of the total length of films screened each year. Overseas service providers shall not engage in film import business.
The main creators of domestic feature films, cartoons, scientific and educational films, documentaries and special films shall generally be Chinese citizens. In case of special needs of filming, overseas main actors may be hired upon approval, but the leading and supporting actors from abroad shall not exceed one third of the total number of main actors. For feature films, cartoons, documentaries, scientific and educational films, etc. co-produced with foreign countries, due to special needs of filming, foreign chief filmmakers may be employed upon approval by the competent Chinese film authorities. The number of foreign main actors shall not exceed two-thirds of the total number of main actors, except for countries and regions stipulated in special agreements.
China implements a licensing system for film co-productions with foreign countries. No company within China may co-produce films with any overseas company without obtaining the approval document. Overseas company shall not independently make films without approval.
Overseas service providers shall not engage in online audio-visual program services. The total amount of foreign films and teleplays introduced by a single website for information online dissemination in a year shall not exceed 30% of the total amount of domestic films and teleplays purchased and broadcast by the website in the previous year. The introduction of foreign films, teleplays and other audio-visual programs for information online dissemination must be examined and approved by the administrative authorities governing radio and television at or above the provincial level.
Foreign films and teleplays intended for broadcast by radio and television stations must be examined and approved by China’s administrative authority of radio and television. Other overseas radio and television programs for broadcast by radio stations and television stations must be examined and approved by China’s radio and television administrative authority or its authorized institutions. The import or retransmission of foreign radio and television programs by means of satellite transmission by a radio station or television station must be approved by the Chinese radio and television administrative authority. China regulates and plans the introduction of foreign films and teleplays. The introduction of foreign films and teleplays and the introduction of other foreign television programs by means of satellite transmission shall be declared by the designated companies. The broadcasting of overseas radio and television programs introduced in accordance with relevant regulations shall comply with the provisions on time proportion and time period arrangement.
Overseas service providers shall not engage in cross-border import business of online cultural products. Contents of China’s WTO accession commitments are not subject to the restriction.
Overseas service providers shall not provide video-on-demand services in the form of radio and television, except for hotels and restaurants above three-star level or equivalent. Those engaged in radio and television VOD services shall obtain a license for radio and television VOD services according to law. The programs used for VOD should be mainly domestic programs. The Chinese government implements an examination and approval system for the landing of foreign satellite channels.
Overseas service providers shall not provide radio and TV program production and operation (including imported business) services. However, with approval, domestic radio and TV program production agencies may cooperate with overseas organizations and individuals in the production of TV dramas (including TV cartoons). No less than 25% of the main creators (screenwriters, producers, directors and main actors) of a TV drama co-produced by China and foreign countries shall be Chinese citizens. The employment of overseas individuals to participate in the production of domestic radio and television programs shall be subject to the examination and approval of the radio and television administrative authorities.
Overseas performance groups and individuals shall not hold commercial performances by themselves, but may participate in commercial performances organized by performance brokerage agencies within the territory of China, or be invited by an artistic performance group within the territory of China to participate in commercial performances organized by such artistic performance group itself. Such performances must be approved by the cultural and tourism authorities. No overseas individual shall engage in intermediary or agency activities for commercial performances.
Overseas service providers shall not engage in news services, including but not limited to news services provided through news agencies, newspapers, periodicals, radio stations and television stations, but (1) With the approval of the Chinese government, foreign news agencies may establish resident news agencies exclusively engaged in news collection and dispatch resident journalists to China; (2) With the approval of the Chinese government and under the condition that Chinese leadership is ensured, Chinese and foreign news organizations may conduct specific business cooperation. With the approval of the Chinese government, an overseas news agency may provide an approved specific news service within the territory of China, for example, contributing to domestic news agencies.
Overseas service providers are not allowed to carry out social art level examinations.