On 26 May 2022, the fourth Frontiers of International Legal Practice Lecture of the China-EU School of Law (CESL) was held online via Zoom meeting. He Xin, Managing Partner at WZR China, and Mao Yahui, Senior Associate at WZR China, were invited to give a lecture to the students of CESL on legal issues related to foreign investment and personal information protection.
At the beginning of the lecture, He Xin presented the European Union Chamber of Commerce in China and the German Chamber of Commerce in China Business Confidence Survey 2021. Despite the impact of the Covid-19, the confidence of European companies to invest in China has increased. This is partly related to the effectiveness of China’s epidemic prevention and control, but also shows the great attractiveness of the Chinese market to European companies. He Xin then shared the practical experience of German companies signing investment agreements with local governments in China and showed the key elements of such investment agreements.
He Xin then asked the students two questions about the investment agreements. Firstly, what is the nature of the investment agreement? Secondly, what is the remedy if a dispute arises between a foreign company and the local government? He Xin confirmed the students’ answers and added to them. First of all, in current practice, there is no clear definition of the nature of an investment agreement. An investment agreement may be considered an administrative agreement. This is because the parties entering into the agreement are not on an equal footing, a land grant involves an administrative act, the completion of the investment is for a public purpose, etc. At the same time, it can also be considered a civil or commercial contract. This is because the agreement is signed after full consultation, with reciprocal rights and obligations, reflecting private law autonomy. The administrative matters are only intended to assist in the implementation of the agreement. In addition, in 2019 the Supreme Court issued a corresponding regulation, the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases”. The second issue is that the remedies are either administrative litigation, administrative review or arbitration. Arbitration is relatively more neutral and efficient.
Finally, Mao Yahui introduced the general rules on the handling of personal information under the Personal Information Protection Law of the People’s Republic of China introduced in August 2021, the impact of the Personal Information Protection Law of the People’s Republic of China on European companies and how European companies can respond to the new Law.
At the beginning of this discussion, Mao Yahui explained the legal provisions on knowledge in depth, consent, and situations involving third parties under the handling of personal information. This was done in part by introducing the first case of facial recognition, one of the top ten typical cases of the year 2021 to promote the rule of law process in the new era. Mao Yahui then further shared the compliance requirements and challenges for European companies in identifying personal information, GDPR, personal information cross-border scenarios, responding to dual legal obligations, and localized data storage after the introduction of the personal information law. This was done by specifically sharing the personal information related issues encountered by European companies in her practical work. Finally, the presentation examined how European companies should respond to the challenges posed by the new personal data law and provided advice from the perspective of both companies and lawyers, as well as in the context of WZR’s practice.
The seminar helped students to understand the legal practice of foreign investment and personal information protection in China and stimulated more practical thinking on these topics.
Written by: CHEN Xing, CESL double master from 2021 intake
The First Lecture on Frontiers of International Legal Practice - IP Due Diligence
The Second Lecture on Frontiers of International Legal Practice - Compliance for Doing Business in China
The Third Lecture on Frontiers of International Legal Practice - M&A Environment in Europe and Basic Legal Issues in Cross-Border M&A Deals