Karl Zhang
On August 18, 2020, the 29th Ministerial Meeting of the Ministry of Commerce deliberated and approved the Measures on Work Relating to Complaints From Foreign-invested Enterprises (the “Measures”), which came into effect on October 1, 2020. The Measures are highlighted below:
I. Scope of application
Article 2 of the Measures stipulates that complaints from foreign-invested enterprises refer to: (1) foreign-invested enterprises and foreign investors (collectively the “Complainants”) requesting a complaint handling institution for a mediated settlement in the belief that the administrative acts of administrative agencies (including organizations authorized under law or regulations to manage public affairs) and their staff (collectively, the “Respondents”) have violated their rights and interests; and (2) complaints lodged by the Complainants to the complaint handling agencies to report existing issues in the investment environment and recommend relevant policy measures for improvement. However, foreign-invested enterprises or foreign investors applying for mediated settlement of commercial disputes with other natural persons, legal persons or organizations will not be deemed as within the scope of complaints by foreign-invested enterprises under the Measures. If the Complainants apply for mediated settlement of disputes with administrative organs in accordance with the Measures, it will not prejudice their right to timely initiate administrative reconsideration or administrative litigation.
II. Complaint handling agencies
The Ministry of Commerce and the relevant departments of the State Council have established an inter-ministry joint meeting system for complaints by foreign-invested enterprises (the “Joint Meeting”) to coordinate and promote the handling of those complaints at the central level and to guide and supervise regional foreign-invested enterprise complaint handling work. The office of the Joint Meeting is located in the Department of Foreign Investment Administration of the Ministry of Commerce, which undertakes the daily work of the Joint Meeting and guides and supervises the work of the national foreign-invested enterprise complaint handling center (“National Handling Center”) nationwide.
Complaint handling agencies refer to the departments or agencies designated by the Ministry of Commerce and local people’s governments at or above the county level that are responsible for accepting complaints from foreign-invested enterprises. The Ministry of Commerce has set up the National Handling Center (temporarily located in the Investment Promotion Affairs Bureau of the Ministry of Commerce) to deal with issues of national or international significance and involving the relevant departments of the State Council, the people’s governments of provinces, autonomous regions and municipalities directly under the jurisdiction of the State Council and their personnel as well as policy measures. With respect to the aforementioned complaint matters, the local people’s governments at or above the county level shall designate a department or agency to handle complaints. These local departments or agencies shall improve the working rules for complaints, how complaints may be submitted, specify the scope of complaints to be accepted and the time limit for handling complaints.
III. Submission of complaint materials
If a complaint falls under Article 2, Paragraph 1, Subparagraph (1) of the Measures, the complaint materials shall include the following: (1) the name or designation, mailing address, postal code, relevant contact person and contact method of the Complainant, supporting materials for the qualifications of the entity, and the date of complaint; (2) the name or designation, mailing address, postal code, relevant contact person and contact method of the Respondent; (3) the specifics of the complaint and relief requested; (4) relevant facts, evidence and reasoning, as well as legal support if available; and (5) a description of the existence of the circumstances listed in Paragraphs (7), (8) and (9) of Article 14 of the Measures. If a complaint falls under the provisions of Article 2, Paragraph 1, Subparagraph (2) of the Measures, the complaint materials shall include the information specified in Subparagraph (1) the relevant problems existing in the investment environment and specific policy measure suggestions. The complaint materials shall be in Chinese. If the originals of the relevant evidence and materials are in a foreign language, an accurate and complete Chinese translation shall be submitted.
IV. Acceptance deadline and handling methods
The complaint handling agencies shall complete the handling of an accepted complaint within 60 working days from the day the complaint is accepted. The time limit may be appropriately extended if the complaint involves multiple departments and complicated situations. The complaint handling agencies may adopt the following methods as different situations require: (1) encourage the Complainant and the Respondent to reach an understanding (including a settlement agreement); (2) engage in mediation with the Respondent; (3) submit suggestions to the people’s government at or above the county level and its relevant departments to improve relevant policies and measures; and (4) any other method deemed appropriate by the agency.
V. Applicability to Hong Kong, Macau and Taiwan
Complaints by investors from the Hong Kong Special Administrative Region, the Macau Special Administrative Region and Taiwan, as well as those from enterprises invested by Chinese citizens residing abroad, shall be handled in reference to the Measures.