V CONFERENCIA INTERNACIONAL ANTILAVADO DE DINERO

FBAR - International Tax Law

 

Under Title 31 USC and Title 26 “US persons” now have until this July 2nd, 2009, unless extended, to file TD F 90-22.1 which requires reporting of all foreign bank, securities, derivatives, or financial product accounts over which the US person has “signatory authority” (read ‘dispositive power’) even if the person has zero financial or economic benefit. Disclosure is required if the balance is over $10,000 at any point in time for the last six calendar years ending in 2008. The balance is “best evidence” and not necessarily ends of month.

 

TD F 90-22.1, long required, but tepidly enforced is now subject to an IRS ‘amnesty’ program and at the same time, the IRS promises to prosecute non filers vigorously. 

 

Taxpayers can now complete the TD Form for each of the past six years and pay-up 20% of the maximum balance in the account as ‘penalty’. The 20% penalty may be abated if taxpayer shows “reasonable cause”. If the IRS is already in possession of the taxpayer’s name, then he or she is not eligible for the amnesty (so conversely the taxpayer would fall under the vigorous prosecution subset). 

 

Disclosure is mandated for US persons in ‘control’ of offshore partnerships, LLC’s or other entities; US officers of US based multinationals especially if CFC disclosures have not been made or required in the past; and, US income and remainder beneficiaries of foreign trusts must report. Liability attached at the individual not the entity level and so several individuals may report the same account for the same offshore entity or structure.

 

Also, current “offshore structures” for US persons may run afoul of the currency reporting provisions and need to be revised. The term US persons extend under Title 31 to persons ‘doing business in the US’ albeit these are not currently targeted.

 

Kindly feel free to contact the undersigned at: mmuina@diazreus.com or telephones (305) 375-9220.

                                                                                               

                                                                                                Margarita P. Muina, J.D., LL.M.

                                                                                                                Board Certified in International Law

                                                                                                                Board Certified in Taxation                               

                                                                                                                mmuina@diazreus.com

 

 

 

 

 

 

Tags:

UAE to house Irena headquarters

Sheikh Abdullah bin Zayed, the Minister of Foreign Affairs, thanked Germany and Austria, previously rivals, for their eventual support of the UAE bid. Hesham Marey for The National

SHARM EL SHEIKH // Abu Dhabi triumphed yesterday in its hard-fought bid to host the headquarters of the International Renewable Energy Agency (Irena).

At a summit of the body’s 136 members, Germany and Austria, the UAE’s rivals to host the headquarters, agreed to withdraw their bids just moments before a vote was due to take place. Bonn and Vienna will instead each house a satellite centre for the agency.

The headquarters, which will be housed in rent-free offices in Masdar City, on the outskirts of Abu Dhabi, will make Irena the first international organisation to be based in a developing country.

After the victory, Sheikh Abdullah bin Zayed, the Minister of Foreign Affairs, pledged the Government’s full support to the agency.

“I would start by thanking Germany and Austria for their support for the UAE today, it certainly shows a lot of interest in our bid,” he said.

“Because of the very fair, frank competition, we had very strong bids from all three countries.”

The Government had aggressively pursued its bid, believing success would raise the country’s global profile. It has also said that the agency would help the development of Masdar, which is planned to be the world’s first carbon-neutral city.

As delegates gathered yesterday for an afternoon vote in this Egyptian resort town, Irena officials announced that the three rivals had reached a compromise.

Austria will host a liaison office to help Irena co-ordinate policy with other international organisations in Europe, while Germany will host an “innovation centre” to help the body’s work in developing countries.

The German government pledged €4 million (Dh21m) to set up the centre, and €2m-€3 million annually to cover its operating costs.

Roy Lee, a professor of environmental law at Yale University in the US, said the win represented an important moment. “That is a very big victory for the UAE and that’s very important particularly for the developing countries,” he said.

“It’s the first time I have observed that developing countries were able to defeat the Western European countries.”

Michael Schrören, a spokesman for the German environment ministry, said his country had first proposed the compromise on Sunday night to avoid a contentious vote.

“Irena doesn’t need friction, it needs common sense and common efforts,” he said.

“We knew that the south/north split would be like a sword over everyone, which we wanted to avoid.”

As the decision was announced, the 55 UAE delegates leapt to their feet with cheers and embraces. The win followed a long diplomatic campaign by senior ministers.

Sheikh Abdullah said that in the past two months he and other ministers had visited 90 countries to garner support. He said that as the vote approached, Austria and Germany had recognised that the UAE bid would have the support of between 92 and 101 member countries.

“The UAE’s hosting of Irena is an indicator and a clear evidence of [our] continuing investment in renewable energy,” he said.

He said that in the past two months he and other government ministers have visited 90 countries for the purpose of garnering support for the UAE’s bid.

“This will boost this network of countries to enhance our relationship with them in other levels.”

Sultan al Jaber, the chief executive of Masdar, said: “This is a historic agreement, we’re very proud.”

He said the decision was made in the few hours before the announcement was made.

“There was pressure by all of the participant countries that there was no need for voting, because it is very clear the UAE deserves it.

“There was a consensus and agreement among them that the UAE is most qualified.”

The next step would be executing the project, he said.

The agency will be housed in temporary buildings in the capital for two and a half years until the Masdar City HQ is completed.

Officials have said it will be the first “energy positive” office building, with rooftop solar panels that produce more electricity than it consumes.

The new director general of Irena was expected to be named late last night.

Source: The National

Date: June 30, 2009

 

 

 

 

Tags:

Diaz Reus & Targ expand to Brazil

Miami-based law firm Diaz Reus & Targ has expanded its practice to Sao Paulo, Brazil, under an international partnership with Brazilian firm Guimaraes & Vieira de Mello Advogados.
 

The partnership will help expand Diaz Reus’ international practice in Latin America. The firm already operates in Caracas, Venezuela, and has a joint venture in Bogota, Colombia.
 

Both law firms will jointly seek international investors for Brazil. Diaz Reus’ Shanghai and Dubai offices are in discussions with potential investors interested in funding oil exploration with a Brazilian company in marginal fields.

 

 

 

"Four Reflections on the Political Consequences of the Economic Crisis in Latin America"

One remarkable trait of the current economic crisis is the perplexity of the social sciences, which are supposed to shed light on its causes, effects, and solutions. In fact, the whole episode has been, notably for economists, a long binge of humble pie. We simply know little about the way the crisis is likely to unfold. This is particularly true about the political implications of the downturn at the global, regional and national levels. So far, the political repercussions of the crisis have received scant attention when compared to its economic consequences.


In Latin America, where the slightly twisted pride of not being the culprit of the collapse led to a prolonged denial of its magnitude, the political implications have hardly been discussed at all. This is surprising, given the fact that the downturn happens to coincide with a region-wide election cycle in 2009-2010. Not just that. A region with historically fragile democratic practices ought to care about the potentially deadly consequences of sharp economic downturns for democratic regimes, consequences that are well established empirically. Inter-war Europe comes to mind. Hence, engaging in some reflection about the political aspects of the current conjuncture in Latin America seems appropriate. Four issues merit attention to begin the discussion.

To read the full text, click here Download file.

By Kevin Casas-Zamora

Senior Fellow
The Brookings Institution
Washington, D.C.
June 25, 2009
__________________

 

 

Tags:

US lodges WTO case against China

 

US lodges WTO case against China

By Tom Braithwaite in Washington, Joshua Chaffin in Brussels and Kathrin Hille in Beijing

In a co-ordinated filing, the EU and the US complained to the WTO that China’s export duties on raw materials such as coking coal were distorting the global market and hurting their manufacturers of steel and other products.

“We are most troubled that this appears to be a conscious policy to create unfair preferences for Chinese industries by making raw materials cheaper for China’s companies to get and goods more economical for them to produce,” said Ron Kirk, US trade representative.

The US has been negotiating with China on the issue for more than two years but the decision to bring the protest to the WTO comes as manufacturers suffer from the recession.

“Now more than ever trade is essential to keeping America’s economy afloat,” said Mr Kirk. The WTO case is the first from the US since President Barack Obama took office in January.

Baroness Ashton, the European trade commissioner, said: “The Chinese restrictions on raw materials distort competition and increase global prices, making things even more difficult for our companies.”

Mr Kirk said he hoped the raw materials complaint could be resolved at the formal WTO consultation stage rather than the next step in which a panel would consider the alleged infringement of trade rules.

Jagdish Bhagwati, professor at Columbia University and senior fellow at the Council on Foreign Relations, said: “I don’t think we’ll win a case under existing jurisprudence. I think this is a shot across the bows.”

Mr Bhagwati said that the US “Buy American” rule attached to its stimulus package meant the country “does not have clean hands” in accusing China of protectionism. But he said using the WTO procedures was the right strategic choice.

Chad Bown, associate professor at Brandeis University and a fellow at the Brookings Institution, said: “Obviously a continued escalation of these cases against China’s exports increases protectionist sentiment. In the current climate of the global economic crisis, this raises the concern of a global spiral of protectionism.”

The US is also stepping up its complaints on a separate trade-related issue over censorship software. US officials based in Beijing are lobbying Chinese counterparts to drop a requirement that computers sold in the country carry internet filtering software called Green Dam.

The US is concerned about the censorship the software allows but also that US computer makers will be blocked from the Chinese market. Manufacturers argue the product could damage machines while a California company claims Green Dam is largely copied from its software.

However, there is no immediate threat to take the case to the WTO. “We are still climbing the diplomatic chain right now,” said a US official.

EU officials have been complaining about China’s treatment of natural resources for some time, arguing that Beijing effectively grants unfair subsidies to manufacturers of steel, chemicals and thousands of finished goods – from ironing boards to flame retardants.

“Trade relations have soured quite dramatically,” said Fredrik Erixon, director of the Brussels-based European Centre for International Political Economy.

“There is a likelihood that more and more companies will be going to the commission and seeking anti-dumping cases,” said Georg Berrisch, a trade lawyer at Convington & Burling in Brussels.

The Chinese foreign ministry did not respond to requests for comment; the Chinese embassy in Washington said Beijing would respond soon.

Tags:

CHINA & LATIN AMERICA

 

 


T&T/OECS Report urges: Get closer to China, India
www.newsday.co.tt
June 4 2009

CARICOM needs to strengthen diplomatic relations with the People's Republic of China and India.

This was one of the recommendations contained in the Trinidad and Tobago/Organisation of East-ern Caribbean States (OECS) integration report. Noting the historical links between Asia and the South-Eastern Caribbean, the report said: "The vibrancy of the Indian and Chinese economies, and the influential role which they will increasingly play in the evolution of rules regulating the international economy will give Caricom as a whole an interest in a deepening of diplomatic relations with those countries."

Closer ties with India and China could enhance the specific interests which Caricom would wish to protect either in a Doha Develop-ment Round or as these two economic titans attempt to settle bilateral or multilateral negotiations in terms of new trade and production arrangements. With India and China showing an increasing interest to participate in the South American economies, Caricom needs to induce "large economic powers such as these to perceive the Caribbean as part of that general area, while being located as a bridging arena, in the Atlantic, between North and South America."

Through their proposed alliance with TT, the OECS will open themselves to "opportunities for investment from the (Asian) sub-continent." Noting that the "long isolation" between Cuba and other nations in the Western Hemi-sphere is slowly being broken down, the report also advocates a strengthening of ties between Caricom and Latin America. While the Free Trade Area of the Americas (FTAA) has fallen victim to "a wider hemispheric diplomacy" and a new CBI-CBTPA agreement awaits the outcome of liberalisation/protection policy trends in the United States, favourable access conditions for TT's commodities in the US (specifically natural gas and its industry derivatives) are one of the few trade agreements left standing in the current global economic environment.

The report also suggested that a TT/OECS union explore potential economic opportunities which might exist with European Union (EU) dependencies such as Martinique and Guadeloupe. Prime Minister Patrick Manning said a document outlining a review of this country's foreign policy will be laid in Parliament soon.

Costa Rica cconcentra esfuerzos contra importaciones masivas de China
Equipo negociador planteará ofensiva para lograr cláusula que evite esa práctica Cerveza, jugos, salsas, pastas, carnes y cueros con potencial para vender allá
Marvin Barquero S. - mbarquero@nacion.com
www.nacion.com - 2009/06/15

Costa Rica pondrá como prioridad la aprobación de un mecanismo para protegerse de importaciones masivas, en la tercera ronda de negociaciones para un Tratado de Libre Comercio (TLC) con China, la que se inicia hoy en nuestro país.

'TLC atenderá las sensibilidades '
 Por eso intentará, desde el primer momento, que los chinos acepten una salvaguardia especial o aumento de aranceles, de aplicación inmediata en caso de una entrada masiva de productos que lesione a un sector productivo local. Hasta ahora, China acordó salvaguardias generales en sus tratados, pero no una específica como en este caso.

La salvaguardia especial es clave para las aspiraciones de Costa Rica en este TLC, reconoció el jefe negociador costarricense, Fernando Ocampo.

Ese mecanismo permite elevar los aranceles de un producto cuando el volumen de importaciones es demasiado grande.

Costa Rica ya puso sobre la mesa la solicitud. Pretende que la salvaguardia especial sea de aplicación inmediata, lo que evitaría el largo camino de demostración del perjuicio que exigen acuerdos como los de la Organización Mundial del Comercio (OMC) para acudir a este mecanismo de defensa comercial.

Según Ocampo, la salvaguardia con las características que pide Costa Rica es mejor defensa para gran cantidad de sectores que incluso la protección con aranceles.

Esa defensa permitiría que casi ningún sector tenga necesidad de ser excluido del TLC con los chinos y aumentaría la cobertura final del acuerdo.

La reunión entre los negociadores chinos y los costarricenses comenzará hoy, lunes, con la expectativa de que se discutirán las segundas ofertas de acceso su mercado presentadas por los países.

Ases. Cada parte se reservó áreas importantes para la otra, y la expectativa consiste en si habrá movimientos en esos campos.

Costa Rica, por ejemplo, tiene gran interés en vender cervezas, jugos, salsas, pastas (en especial de arroz), azúcar y carnes (res, cerdo y pollo) con beneficios del libre comercio en China; pero estos bienes todavía no fueron incluidos por los chinos en sus ofertas.

Al contrario, para China es muy importante colocar aquí plásticos, productos de metal-mecánica, algunos materiales de construcción, textiles, llantas y otros. Costa Rica también se reservó estos rubros y no le ha ofrecido, hasta ahora, nada a los negociadores chinos.

Costa Rica también aprovechará esta tercera ronda para presentar ante los chinos un programa completo de cooperación, el cual tiene como uno de sus principales aspectos el intercambio de tecnología y la traída de especialistas de ese país a dar asesoramientos a productores nacionales.

La tercera ronda también está rodeada de protestas de algunos sectores que a esta altura de las negociaciones no se han superado.

Fernando Ocampo considera que algunas inquietudes son justificadas y que, mediante una coordinación estrecha con los empresarios, se atenderán esas "sensibilidades". Otras, en cambio, no son sensibilidades reales, según las consideraciones de Ocampo.

Parte de las inquietudes de varios sectores es controlar la calidad de los productos importados. En este sentido, reveló Ocampo, ya se atendieron las solicitudes de varios empresarios y se trabaja actualmente en establecer reglamentos técnicos, en coordinación con el Ministerio de Economía, Industria y Comercio (MEIC).

Esta normalización especializada se emitirá para materiales de construcción, medicamentos y llantas hasta este momento, porque son los sectores que se acercaron a exponer inquietudes.

En tales sectores, el Gobierno no tenía la opción de controlar con claridad la calidad de los productos importados pues no se contaba con referencia técnica para medirla.
 


        Deals Help China Expand Sway in Latin America
        By SIMON ROMERO and ALEXEI BARRIONUEVO
        CARACAS, Venezuela
        www.nytimes.com - April 15, 2009

        As Washington tries to rebuild its strained relationships in Latin America, China is stepping in vigorously, offering countries across the region large amounts of money while they struggle with sharply slowing economies, a plunge in commodity prices and restricted access to credit.

        In recent weeks, China has been negotiating deals to double a development fund in Venezuela to $12 billion, lend Ecuador at least $1 billion to build a hydroelectric plant, provide Argentina with access to more than $10 billion in Chinese currency and lend Brazil's national oil company $10 billion. The deals largely focus on China locking in natural resources like oil for years to come.

        China's trade with Latin America has grown quickly this decade, making it the region's second largest trading partner after the United States. But the size and scope of these loans point to a deeper engagement with Latin America at a time when the Obama administration is starting to address the erosion of Washington's influence in the hemisphere.

        "This is how the balance of power shifts quietly during times of crisis," said David Rothkopf, a former Commerce Department official in the Clinton administration. "The loans are an example of the checkbook power in the world moving to new places, with the Chinese becoming more active."

        Mr. Obama will meet with leaders from the region this weekend. They will discuss the economic crisis, including a plan to replenish the Inter-American Development Bank, a Washington-based pillar of clout that has suffered losses from the financial crisis. Leaders at the summit meeting are also expected to push Mr. Obama to further loosen the United States policy toward Cuba.

        Meanwhile, China is rapidly increasing its lending in Latin America as it pursues not only long-term access to commodities like soybeans and iron ore, but also an alternative to investing in United States Treasury notes.

        One of China's new deals in Latin America, the $10 billion arrangement with Argentina, would allow Argentina reliable access to Chinese currency to help pay for imports from China. It may also help lead the way to China's currency to eventually be used as an alternate reserve currency. The deal follows similar ones China has struck with countries like South Korea, Indonesia and Belarus.

        As the financial crisis began to whipsaw international markets last year, the Federal Reserve made its own currency arrangements with central banks around the world, allocating $30 billion each to Brazil and Mexico. (Brazil has opted not to tap it for now.) But smaller economies in the region, including Argentina, which has been trying to dispel doubts about its ability to meet its international debt payments, were left out of those agreements.

        Details of the Chinese deal with Argentina are still being ironed out, but an official at Argentina's central bank said it would allow Argentina to avoid using scarce dollars for all its international transactions. The takeover of billions of dollars in private pension funds, among other moves, led Argentines to pull the equivalent of nearly $23 billion, much of it in dollars, out of the country last year.

        Dante Sica, the lead economist at Abeceb, a consulting firm in Buenos Aires, said the Chinese overtures in the region were made possible by the "lack of attention that the United States showed to Latin America during the entire Bush administration."

        China is also seizing opportunities in Latin America when traditional lenders over which the United States holds some sway, like the Inter-American Development Bank, are pushing up against their limits.

        Just one of China's planned loans, the $10 billion for Brazil's national oil company, is almost as much as the $11.2 billion in all approved financing by the Inter-American Bank in 2008. Brazil is expected to use the loan for offshore exploration, while agreeing to export as much as 100,000 barrels of oil a day to China, according to the oil company.

        The Inter-American bank, in which the United States has de facto veto power in some matters, is trying to triple its capital and increase lending to $18 billion this year. But the replenishment involves delicate negotiations among member nations, made all the more difficult after the bank lost almost $1 billion last year.

        China will also have a role in these talks, having become a member of the bank this year.

        China has also pushed into Latin American countries where the United States has negligible influence, like Venezuela.

        In February, China's vice president, Xi Jinping, traveled to Caracas to meet with President Hugo Chávez. The two men announced that a Chinese-backed development fund based here would grow to $12 billion from $6 billion, giving Venezuela access to hard currency while agreeing to increase oil shipments to China to one million barrels a day from a level of about 380,000 barrels.

        Mr. Chávez's government contends the Chinese aid differs from other multilateral loans because it comes without strings attached, like scrutiny of internal finances. But the Chinese fund has generated criticism among his opponents, who view it as an affront to Venezuela's sovereignty.

        "The fund is a swindle to the nation," said Luis Díaz, a lawmaker who claims that China locked in low prices for the oil Venezuela is using as repayment.

        Despite forging ties to Venezuela and extending loans to other nations that have chafed at Washington's clout, Beijing has bolstered its presence without bombast, perhaps out of an awareness that its relationship with the United States is still of paramount importance. But this deference may not last.

        "This is China playing the long game," said Gregory Chin, a political scientist at York University in Toronto. "If this ultimately translates into political influence, then that is how the game is played."

        

                China's Maturing Relationship with Latin America
                China Brief - Volume: 9 Issue: 6 March 18, 2009
                http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news%5D=34723&tx_ttnews%5BbackPid%5D=7&cHash=e9c8d14e49
                by Evan Ellis

                The five-nation visit by Chinese President Hu Jintao to Latin America in conjunction with the November 2004 Asia-Pacific Economic Cooperation Forum (APEC) summit in Santiago, Chile, marked the beginning of a fundamental transformation in China's relationship with Latin America. Prior to that trip, the People's Republic of China (PRC) had almost no presence in the mainstream Latin American political, business and social discourse.  The message sent by President Hu and his delegation during that trip was the Chinese intent to promote and accelerate a nascent partnership with the region.

                Following Santiago, four years elapsed before the site of the annual APEC summit returned to Latin America.  When President Hu traveled to the region in November 2008 to attend the APEC summit in Lima, Peru, the trip highlighted how far China's relationship with Latin America had evolved in only four years.

                President Hu's trip came just weeks after the PRC's induction as a voting member of the Inter-American Development Bank.  It also coincided with the release of China's first policy paper on the region, "China's Policy Paper on Latin American and the Caribbean." The paper confirms Beijing's intention to expand its engagement with Latin America on multiple fronts, from investment to technology partnerships to military exchanges [1].  En route to Lima, President Hu stopped in Costa Rica, which in June 2007 became the first Central American nation in the post-Cold War era to switch its diplomatic recognition from Taiwan to mainland China. In Cuba, Hu signed 37 agreements and had a photo op with an ailing Fidel Castro, which reinforced China's role as Cuba's principal extra-hemispheric patron [2].  In addition, the APEC summit highlighted the efforts of Peru and Chile to position themselves as commercial hubs in the developing trade between China and South America.

                The Maturation of the Trade Relationship
                Since 2004, China's relationship with Latin America has not only expanded quantitatively, but has also matured qualitatively in terms of both transactions and knowledge.

                The growth of China-Latin America bilateral trade from $10 billion in 2000 to $102.6 billion by the end of 2007 [3] reflects two reinforcing phenomena: 1) the expansion of commodity exports to China by a small set of southern cone countries, and 2) a broad-based penetration by China into Latin American product markets.

                The primary products purchased by China from Latin America have been commodities such as iron, copper, soy and fishmeal that do not require complex transactions or an extensive local presence.  As PRC experience with the region has grown, however, it has cautiously established an investment presence in key commodity sectors.  In Venezuela, it moved from modest oilfield operations in the Lake Maracaibo area to a more important and potentially riskier presence as a minority partner in developing the massive heavy oil reserves in the Orinoco river basin. In Peru, China Aluminum Corporation committed to invest up to 2.2 billion over the next 30 years for the rights to operate a mine at Toromocho [4].  In February 2009, during an official visit to Brazil, Chinese Vice-President Xi Jinping signed a preliminary accord for a $10 billion loan to the Brazilian national oil company Petrobras, providing it with capital for developing new deepwater oil reserves, which could ultimately be exported to the PRC [5].

                In some cases, these investments have proven problematic for the PRC.  Two years after a Chinese consortium invested $1.42 billion to purchase the Ecuadoran assets of the Canadian oil firm EnCana in 2006.  The Ecuadoran government forced the Chinese to give up property rights in oil fields that had been part of the purchase and sign a new contract in which they simply extracted oil from the territory under a service contract with Ecuador [6].  Hutchison Whampoa Limited was forced to withdraw from a concession to operate the port of Manta when it could not resolve a dispute with the Ecuadoran government concerning the contractual obligations for investment in the port [7].  In Chile, China Minmetals invested $550 million in a copper advance purchase agreement with the state mining company COLDELCO, only to discover in 2009 that the agreement did not give it the expected right to acquire a 49 percent stake in the new Chilean mine "Gabriel Mistral" [8].  In Venezuela, a 2006 decision by PdVSA to stop producing the heavy petroleum product ormulsion left in the lurch a power plant built by the Chinese to use it [9].

                Beyond commodities, select Latin American companies such as Grupo Modelo, FEMSA and GRUMA have made some progress building markets in the PRC, selling recognized brand name products to the growing Chinese middle class.  Latin American governments have also improved their ability to support their nationals seeking to do business in China, opening commercial attaché offices in secondary locations such as Shanghai and Guangzhou, in addition to their embassies in Beijing. They are also expanding and refining the capabilities of trade promotion organizations tied to the government such as ProChile, APEX, Fundacion Exportar, PROCOMER, and CORPEI.  Additionally, they have created technical frameworks to support trade and investment including bilateral free trade agreements with China, such as those of  Chile (2006), Peru (2009), and Costa Rica (initiated November 2008), as well as reciprocal investment protection agreements (Colombia, November 2008) and individual phytosanitary agreements.  Nonetheless, those governments and producers have discovered that despite such efforts, traditional products such as coffee and fruits have not sold well in the PRC.  In addition to issues of Chinese tastes, these perishable products and the labor required to harvest them makes them uncompetitive against closer, lower-cost producers such as the Philippines.

                With respect to Chinese exports to Latin America, the PRC has not only increased its market share, but also the sophistication of its product offering in Latin American consumer markets.  As factories in the PRC produced more items and Latin American traders  became more sophisticated in dealing with those factories, China has complimented its offering of labor-intensive manufactured goods such as clothing, toys and footwear with a broad selection of Chinese motorcycles, cars, heavy machinery, appliances, and consumer electronics.  The PRC has also launched projects to build assembly facilities in the region itself, leveraging the access to third-country markets afforded by regional free trade agreements. Chinese auto companies DongFeng, Geeley, and FAW [10], for example, have announced plans to create assembly plants in the Mexican maquiladora sector, in order to achieve duty-free access to the U.S. car market under provisions of the North American Free Trade Agreement.

                Finally, China or Hong Kong-based companies with a more multinational character have expanded their physical presence in the region to service clients.  These companies include the logistics company Hutchison-Whampoa, China Overseas Shipping Company (COSCO), the telecommunications companies ZTE and Huawei, and Hong Kong Shanghai Bank of China (HSBC).

                The Expanding Influence of China
                Although the expanding volume of trade and investment between the PRC and Latin America is impressive, perhaps the most significant transformation has been the expanding weight of the PRC in the calculations of political leaders, businesspeople, and others in the region.

                The perception that China is emerging as a key economic and political player has been a powerful motivator for leaders to invest time and resources to leverage, accommodate, or defend against such a future. The decision by Costa Rican President Oscar Arias to diplomatically recognize the PRC in June 2007 was motivated, in part, by his conviction that positioning his country in line with China's rise was necessary for it to play a leading role in the Americas.  The investment of time by Latin American leaders to promote their countries' commercial and political relationship with the PRC through official visits to China has been similarly impressive. During 2008, for instance, four Latin American heads-of-state made high-level visits to China accompanied by trade and investment-oriented delegations: Peruvian President Alan Garcia (February), Chilean President Michele Bachelet (April), Mexican President Felipe Calderon (July), and Venezuelan President Hugo Chavez (September).

                In the private sector, the calculation of businesspeople that the PRC will be among the most important markets of the future has motivated a wide range of corporate leaders to dedicate significant time and capital to position themselves in China, even when those companies do not expect to generate a profit from their China operations for years.

                In the academic world, Chinese language programs and China studies programs in Latin American universities have proliferated since 2004.  While the United States remains a dominant cultural and economic reference, a growing mass of Latin American students are investing their futures in the expectations of China's future importance.

                The Impact of the Global Recession
                The transformation of China's relationship with Latin America during the past four years is an inadequate measure of the rate of change to come. In particular, the deepening global recession, which may bring about financial and political upheaval, can fundamentally transform the roles of actors such as the PRC in the international system.

                In the short to medium term, the recession is likely to severely strain China's relationship with Latin America.  The PRC is likely to reduce its purchase of primary products from Latin America, while simultaneously seeking to boost its sale of goods there to compensate for lost sales to its traditional customers in the United States and Europe. This will exacerbate the existing trade deficit.  The diminishing benefits of the PRC as a customer of Latin American goods, in combination with heightened competition from China as a major seller-as Latin American producers teeter on the edge of solvency-is likely to strengthen political forces with the social constituency in the region critical of trade with China  This could fuel local resentment against Chinese companies' actions such as the 2006 takeover of an Andes petroleum oil field in Tarapoa, Ecuador [12], or the 2007 violence against the Chinese company Petroriental in Orellana [13].  It could also foment violence against ethnic Chinese in the region, as demonstrated by the incidents in 2004 against Chinese shopkeepers in the Venezuelan communities of Maracay and Valencia [14]. Such events may also motivate the PRC to work with governments in the region in new ways to protect PRC businesses and the Chinese Diaspora in ways that it did not do during the previous century when the PRC was weaker.

                At the same time, if the PRC is able to effectively manage the tensions generated by economic conditions, both at home and in Latin America, it may emerge from the crisis with a dramatically stronger position in the region.  The evaporation of Western capital from the region has increased the region's leaders' focus on the PRC and its $2 trillion in foreign currency reserves as a potential new source of global liquidity and investment.  The steep decline in global commodity prices and asset values provide an opportunity for the PRC to acquire more assets in Latin America at bargain prices, while also winning influence and goodwill for investing in the region at a time in which Western investors are not.

                As the global recession deepened in February 2009, for the first time ever, two senior Chinese officials made simultaneous multi-country trips to the region.  Chinese Vice-President Xi Jinping, mentioned as a likely successor to Hu Jintao, paid visits to Jamaica, Colombia, Venezuela, Brazil and Mexico, while Hui Liangyu, the Chinese vice-premier, made trips to Argentina, Barbados, Ecuador, and the Bahamas.  Other factors must be considered as well, such as how the crisis affects the competitive position between China and other outside players in Latin America, such as India.  While it is difficult to determine the outcome of such interactions, it is likely that the next time that APEC hosts its annual summit in Latin America, the region's relationship with China will have evolved as much, if not more, than the change witnessed from the 2004 Santiago summit to the 2008 summit in Lima.

                Notes

                1. "Full text: China's Policy Paper on Latin America and the Caribbean."  China View.  Beijing, China.  news.xinhuanet.com/english/2008-11/05/content_10351493.htm.  November 5, 2008.
                2.  "Cuba propuso a China 37 proyectos por $1,500 millones." El NuevoHerald. Miami, Florida. elnuevoherald.com. November 23, 2008.
                3.  "Total Import and Export Value by Country (Region) (2007/01-12)".  Ministry of Commerce of the People's Republic of China..  Http://english.mofcom.gov.cn.aarticle/statistic/ie/200802/20080205371690.html.  February 4, 2008.
                4.  "Proyecto Toromocho generará 5,000 empleos durante su construcción, señala presidente García (ampliación)."  Andina. Lima, Peru. www.andina.com.pe.  May 5, 2008.
                5.  "China considera millonaria financiación de Petrobras."  La Nacion.  Buenos Aires, Argentina.  www.la-nacion.com.ar.  February 20, 2009.
                6. "La Andes Petroleum y Repsol logran un acuerdo."  El Universo.  Guayaquil, Ecuador.  www.eluniverso.com.  August 9, 2008.
                7.  "Hutchison ya no seguirá en el puerto del Manta" El Universo.  Guayaquil, Ecuador.  www.eluniverso.com.  8 February 2009.
                8.  "Codelco y Minmetals podrían acudir a arbitraje por Gaby." Diario Financiero. Santiago, Chile. www.df.cl. July 16, 2008.
                9.  "China sólo se quedará con dos tercerios de la ormulsión del segundo módulo." El Universal. Caracas, Venezuela. www.eluniversal.
                com. April 11, 2006.
                10.  "Chinese cars coming to Mexico."  BusinessWeek.  www.businessweek.com.  November 23, 2007.
                11. Eight Confucius institutes have been established in South America alone, none of which existed in 2004.  See "Worldwide Confucius Institutes."  Official website. www.linese.com/confucius_institutes/search. Accessed 1 March 2009.  New or significantly expanded Asia studies program in Universidad EAFIT in Medellin, Colombia Universidad San Fransisco in Quito, Ecuador, the Escuela Polyechnica del littoral (ESPOL) in Guayaquil, Ecuador and the Universidad de Manta, among others.
                12.  "Petrolera china dice que incidentes en Amazonia no afectarán sus intereses en Latinoamérica."  El Comercio.  Quito, Ecuador.  www.elcomercio.com.  November 14, 2006.
                13.  "Protestas contra Petrooriental dejan 31 heridas en ocho dias."  El Comercio.  Quito, Ecuador.  www.elcomercio.com.  July 4, 2007.
                14. Yolanda Ojeda Reyes, "Ciudanos Chinos Reciben Protección"  El Universal.  Caracas, Venezuela.  www.eluniversal.com.  November 11, 2004.

                China se ofrece para ayudar a Latinoamérica a superar la crisis
                Medellín (Colombia)
                28 mar (EFE)

                China, miembro del Banco Interamericano de Desarrollo (BID) desde el pasado enero, ofreció hoy su ayuda a los países de América Latina y Caribe para superar la crisis a través de inversiones y una mayor cooperación financiera.

                El gobernador del Banco Popular de China, Xiaochuan Zhou, dijo en la ciudad colombiana de Medellín (noroeste), donde se celebra la 50 asamblea anual del BID, que como nuevo miembro "China está dispuesta a aprovechar esta oportunidad para mejorar la cooperación de las relaciones financieras y comerciales" en el contexto de la crisis.

                Durante su intervención ante la Asamblea, Xiaochuan consideró que esta crisis ha generado una reducción de la liquidez, por ello "la cooperación entre países puede compensar las pérdidas comerciales y la disminución de la inversión".

                En este contexto, "China quisiera aprovechar esta oportunidad", dijo el gobernador del Banco Popular, al expresar que las condiciones de la relación China-Latinoamérica están dadas.

                Explicó que, desde 2001, el comercio entre China y esta región ha ido creciendo a un ritmo del 40 por ciento anual hasta llegar en 2008 a 140.000 millones de dólares (105.302 millones de euros).

                "Las importaciones y exportaciones han tenido balance positivo en general y China ha sido uno de los socios más grandes de la región latinoamericana", matizó.

                Aclaró que, además de bienes tradicionales, el gigante asiático también ha exportado productos de alta tecnología y otros de valor agregado.

                "Además, los países latinoamericanos han invertido sumas significativas en China", agregó, al hablar de un total de 14.000 millones de dólares (10.530 millones de euros).

                Según Xiaochuan, la inversión china directa en América Latina y el Caribe asciende a 24.000 millones de dólares (18.052 millones de euros), incluidos unos 3.000 millones de dólares (2.256 millones de euros) en préstamos.

                Recordó que, en los últimos años, China firmó un Tratado de Libre Comercio (TLC) con Chile y culminó negociaciones con Perú, además inició conversaciones para un acuerdo de este tipo con Costa Rica y rubricó acuerdos para la promoción de inversiones con varios países de la región, entre ellos Colombia.

                "Estas cifras nos muestran que podemos manejar de forma exitosa el comercio para aumentar la inversión, especialmente en el sector financiero, con el BID y otros bancos de desarrollo, que podrían desarrollar operaciones y reducir el impacto neto de la crisis financiera global", matizó.

                El gobernador de Banco Popular de China dijo que su país ve oportunidades de inversión en sectores vinculados a satélites, aeronáutica, biología, farmacia, software.

                Además, "tenemos en cuenta el sector servicios: finanzas, transporte y turismo", agregó, al matizar que la región "necesita una reestructuración industrial mayor".

                "Quisiéramos dar ayuda en materia de financiación en infraestructuras y fomento del comercio", agregó.

                Manifestó que "hay posibilidades para considerar inversiones", pero agregó que esto se irá dando de acuerdo a un proceso para conocer mejor la región latinoamericana, sus condiciones políticas y económicas, y también su idioma.

                "El potencial que tiene china para la inversión directa en la región es enorme", manifestó Xiaochuan, quien aseguró que la experiencia de China en materia de construcción de grandes infraestructuras se pondrá al servicio de América Latina.
                 
                 

              
                        China and Caribbean
                        The View from Europe
                        By David Jessop, Director of the Caribbean Council and can be contacted at david.jessop@caribbean-council.org
                        Previous columns can be found at www.caribbean-council.org
                        March 23, 2009

                        When Jamaica's Usain Bolt effortlessly won the one hundred metres in the August 2008 Beijing Olympics, it became a defining moment of an event that cemented China's global presence in the minds of hundreds of millions of people around the world.

                        That it involved a citizen of the Latin American and Caribbean provided an unexpected bonus to Beijing at a time when it was finalising its policy towards the region and Latin America.

                        In November, China released its first policy paper on Latin America and the Caribbean. It did so just days ahead of a Latin American tour by its President, Hu Jintao, aimed at deepening ties with the region.

                        The Chinese President visited Costa Rica, Cuba and Peru. Subsequently in February of this year, the Chinese Vice President, Xi Jinping, visited Jamaica, Mexico, Colombia, Venezuela, Brazil and the Chinese Vice Premier, Hui Liangyu, travelled to Argentina, Ecuador, Barbados and the Bahamas. The timing and level at which the three visits took place, demonstrated China's intent to fully engage in carefully differentiated ways in the Hemisphere.

                        According to the Director-General of the Department of Latin American and Caribbean Affairs in the Chinese Foreign Ministry in Beijing, Yang Wanming, the paper had taken a long time to prepare, draft and revise.

                        Strikingly it is more comprehensive in scope than any similar document produced over the last decade by Europe, the US or Canada and as such is worth greater consideration than it was given in the regional media when published.

                        It begins with the simple but central observation that the global move toward multi-polarity is irreversible. It goes on to make clear that as the largest developing country in the world, China is seeking to cooperate with all countries and regards improved relations with Latin American and the Caribbean as offering new opportunities.

                        The paper notes that China's engagement is strategic and that it seeks to build a comprehensive partnership based on equality, mutual benefit and development with, as an underlying principle, a one China policy.  In doing so it says it expects to 'expand strategic common ground' and will show understanding and support on issues involving core interests and major concerns through economic cooperation and trade.

                        In practical terms the policy paper spells out that China wishes to develop high level political exchange, exchanges between legislatures and political parties, establish consultation mechanisms and identify areas of co-operation in international affairs.

                        At an economic level the paper makes clear that China will seek to develop two-way trade and will support Chinese companies in investing in manufacturing, agriculture and services. It also identifies the possibility of co-operation on financial issues, agriculture, infrastructure, natural resources and energy, customs, debt reduction and cancellation, as well as through the provision of economic and technical assistance. It makes reference to helping south-south development and to encouraging commercial exchanges between business communities. There is language about culture, sports, science, technology, education, medical care, the media and many other areas.

                        Interestingly, in what appears to indicate China's eventual global role, the policy paper also refers to military exchanges and it intention to begin a defense dialogue and to support Latin American and Caribbean countries on a wide range of activities that 'will enhance security co-operation at all levels'.

                        Placed in perspective, it is a statement of a super power willing to co-operate in virtually all aspects of relations with Latin America and the Caribbean that makes clear that the region can no longer be regarded as one in which the US Government alone exercises influence.

                        Putting this policy into action in the Caribbean, it would seem that China is now placing a particular emphasis on developing its economic and other relations with the United States near neighbours, the nations of Western Caribbean.

                        As is well known, China has for long time enjoyed a close relationship with Cuba that involves significant amounts of development assistance, trade - China is Cuba's second biggest trading partner with bilateral trade standing at $2.3bn in 2007 - investment, scientific co-operation and military exchange.

                        But Jamaica too has become a prominent partner for China which recently provided some US$118m for technical and economic cooperation. A new arrangement includes a cooperation agreement between the Export-Import Banks of China that establishes a US$100m line of credit for short-term trade financing; a US$10m agreement for concessional financing between the Development Bank of Jamaica and the Chinese National Development Bank; a US$7.3m provision for technical and economic support; and a US$1.1m agreement for the provision of agricultural equipment and machinery.

                        In addition, agreements have been reached on technical and economic support in other areas including tourism and the establishment of a Confucius Institute at the Mona Campus of the University of the West Indies, for the teaching of the Chinese language.

                        Speaking recently about the significance of the relationship Jamaica's Prime Minister, Bruce Golding, said that other important public and private sector initiatives were under discussions and "that there were no limits to the extent to which cooperation between Jamaica and China might grow".

                        In a further indication of the growing depth of the relationship and his desire to develop an independent global foreign policy, the Jamaican Prime Minister also made clear that broader global issues have also been discussed. "It is quite clear to me that cooperation between Jamaica and China will move beyond just the parameters of bilateral arrangements, to seek to effect meaningful change to the global financial and economic arrangements," he stated recently.

                        Prime Minister Golding is expected to visit China later this year and further economic agreements are expected may be announced.

                        The Bahamas and China too have extended their bilateral cooperation with the signing of an economic and technical agreement that will make available some US$10m for projects. Both countries have also agreed to a new framework for cooperation in agriculture and in other areas. In Haiti, China too, is involved in peacekeeping and has shown some interest in agriculture while in the Dominican Republic where the ties between the Republic's President and Taiwan remain strong; there remains an interest in trying to identify how movement forward might be possible albeit at a slow pace.

                        China has become a major regional player. It is increasingly involved in providing finance for hemispheric institutions such as the Caribbean Development Bank and the Inter American Development Bank. Soon a moment will come when the region and all others beyond will have to find ways to co-ordinate their development policies with those being delivered by Beijing.
                         

                      

                                China tries peddling its wares in . China?
                                Chinese exports fell by 26 percent in February so China is now hoping to find domestic buyers for goods once bound for American shopping malls.
                                By Peter Ford
                                www.csmonitor.com - March 12, 2009 edition

                                Liu Dequan says he has had to alter the ornamental lamps his firm had fashioned for the US market. He's changed the plugs to fit Chinese sockets.

                                "Since the financial crisis happened I have had no foreign business at all," Mr. Liu laments. "I decided that I have to work on the domestic market no matter how difficult it is."

                                He is not alone. Chinese exports are in free fall, according to government figures released Wednesday, dropping by 26 percent in February from a year earlier, after a 17.5 percent drop in January.

                                Liu is one of 30 or so Chinese manufacturers currently selling their export wares instead to Chinese consumers at a month-long fair in China's Yansha shopping mall, the country's largest.

                                Organized by the Beijing Department of Commerce, the sales drive is designed both to introduce ailing exporters to new markets and to encourage consumers to spend money on goods they may never have seen before.

                                It has been a hit with shoppers. The mall's doors were mobbed well before opening Thursday morning, as security men with bullhorns tried to keep order among the hordes.

                                Whether this kind of event can really help put the pep back in the Chinese economy, however, is uncertain. The growth of China's gross domestic product could be as low as 5 percent this year, some analysts say, down from 9 percent in 2008.

                                "I don't think that in the short term domestic consumption can make up for the loss of exports," says Xiang Songzuo, an independent economist. "Exports have fallen quickly and consumption will grow more slowly."

                                There are some signs that increased consumption might cushion the blow, however. Auto sales surged 25 percent last month from a year earlier, in the wake of a 50 percent cut in the purchase tax on small vehicles that the government's stimulus package introduced last November.

                                Nothing as large as a car is on offer at the Yansha mall; the temporary stalls set up in the corridors sell household items such as jewelry, water purifiers, clothes, hi-fi speakers, and photo frames.

                                Electric yogurtmakers have proved a particularly spectacular success. "We've sold 200 so far today," says Zhang Hong, general manager of Rikon, after only an hour's business Thursday, which saw her standing in front of a pile of cardboard cartons frantically handing out $14 models as a line of customers lengthened.

                                "We used to sell only in the US and Europe, but we've been affected by the crisis so we are switching our attention to the domestic market," she added. Though her firm no longer enjoys the tax rebates that the government offers to encourage exports, Ms. Zhang says, the higher prices she can charge here keep profit margins up.

                                One happy customer was Liu Jingzhu, a middle-aged economics researcher at a government-run think tank. "Exports are very difficult at the moment so they are selling to local consumers," she said. "Lucky for us.

                                "I couldn't find this in China normally," she added. "You seldom see export-quality goods on the shelves here."
                                That seemed to explain the size of the crowds of shoppers who gathered in a curious crush around the stalls. "People think the quality of export goods is better," says a young man selling glass ornaments who would give only his surname, Ma. "And they are right. We can't put any lead in things we sell abroad, for example."

                                At a nearby stall, salesmen sang the praises of robotic vacuum cleaners equipped with MP3 players or webcams. "We used to do 70 percent of our business with Europe and Southeast Asia," says marketing manager Qian Xinxin. "We've suffered a lot from the financial crisis.

                                "It won't be possible to make up for all our international losses, but we can compensate a little" through domestic sales, Ms. Qian says.

                                Several manufacturers said they were not especially looking forward to working in the Chinese market. They compared the relative ease of doing a few big deals with a foreign buyer with the complications of selling to many different retail outlets here that pose restocking problems and do not always pay their bills quickly. The risk of seeing their products copied and undercut is also greater in China, they say.

                                But many Chinese exporters don't have much of a choice. Mr. Liu, the lamp and furniture maker, for example, thought he had a massive deal with a Los Angeles buyer whose chain of stores went bankrupt last year. "If I'd got that deal I would not be here today," he says, dusting off an ornate enamel lamp stand.

                                Not all is lost, though. The Beijing Department of Commerce arranged the same sort of meetings for Liu with retailers in the capital as it has done for all the companies at the fair. Three stores have expressed interest in his goods, he says, and "if things go well I think I can make up my losses.

                                "Still," he adds wistfully, "I am looking forward to an economic recovery in the US."
                                



Tags:

New Measures for China Government Approval on China Outbound Investment

China’s Ministry of Commerce recently (March, 2009) enacted Measures to better facilitate China’s outbound investments.  The previous regulatory regime was considered vague and led to some confusion.  The new Measures bifurcate approval authority between the Beijing National office level and the local level (provinces, municipalities, and other governmental units) with each level obtaining specific criteria to acquire jurisdiction.  Some see obtaining approval outside Beijing as easier and requiring less time and so it is preferable to re-structure the deal in order to avoid Beijing. 

 

In 2008, China overseas investment doubled to $52.2 billion, and 2009 has already outpaced that figure, according to China's Ministry of Commerce.  China's direct outbound investment should exceed US$60 billion by 2010, according to Assistant Minister of Commerce Chen Jian.  For comparison, U.S. direct investment abroad, was $333 billion in 2007 and $241 billion in 2006, according to the U.S. Department of Commerce.

 

The Measures create the Overseas Investment Management System (OIMS) allowing Beijing and all other governmental units to centralize application processing.  It is expected that this system will reduce processing times.  Though the new Measures give the local level approval authority, Beijing still must approve the lower level decision and the OIMS will reduce processing times.

 

The goal for Chinese entities (and their overseas beneficiaries) is to receive an Enterprise Overseas Investment Certificate (“Certificate”) allowing the Chinese legal entity to proceed with the outbound investment.  With the Certificate, the Chinese legal entity should receive full support from all other China organs (tax, customs, foreign exchange) as well as from banking intermediaries.

 

In order to avoid Beijing’s jurisdiction, a potential overseas investment needs to make sure that it involves none of the following:

1. Overseas investment in a country which has not established diplomatic relations with China [There are about 23 of these countries.  Generally, it is those countries that maintain diplomatic ties with the Republic of China (Taiwan).  The top three countries in terms of GDP in which this applies are the Dominican Republic (75th), Guatemala (80th), and El Salvador (91st)];

2. Overseas investment in a specific country or region identified by the Ministry of Commerce in conjunction with the Ministry of Foreign Affairs and other relevant departments [Though this list has not yet been published, investment in the United States and the United Kingdom were not allowed to be approved at the local level as of 2004 in MoC’s Order No. 16.  This recent Measure, though, has abolished that Order];

3. Where the Chinese party invests USD 100 million or more;

4. Overseas investment which involves the interests of multiple countries or regions; or

5. Setting up a special-purpose company overseas [The Measures defines this term as an overseas company directly or indirectly controlled by the Chinese legal entity for the purpose of listing on a foreign exchange with the rights and interests actually owned by the Chinese legal entity].

 

If the investment falls outside one of these five categories, then it can apply for the Certificate at the local level where the chances of approval and expediency are probable.

 

While drafting an agreement related to a potential deal with a Chinese entity, it is probably beneficial to include a provision shifting the burden of China government approval to the Chinese side.  They are, after all, in the better position to get the Certificate. 

 

One should be wary of the possibility of rejection because of “national interest” policies.  The Measures provide for this.  Any investment that “endangers the state sovereignty, national security and public interests of China; violates a law or regulation of China; or damages the relationship between China and a relevant country or region” then it shall be rejected.  It is suggested to make sure the Chinese side is responsible for avoiding such a designation.

 

Adam Ehrlich

Chief Representative

Diaz Reus & Targ LLP

 

 

Chinalco steps back from Rio Tinto deal

 HONG KONG (Reuters) - Frustrated by political interference in Australia as it tries to buy natural resources there, China is changing tack and will use homegrown private equity firms as a more subtle weapon to seek out overseas deals.

Resources-focused private equity firms are raising billions of dollars and, in terms of dealmaking, will be far more nimble than China's massive state conglomerates, said two sources familiar with the matter.

The funds will also be able to cut smaller deals under the radar and avoid the type of scrutiny that has slowed Chinalco's $19.5 billion tie-up with Rio Tino.

A group of around 300 mine entrepreneurs recently raised 500 million yuan ($73.25 million) for the China Mining United Fund, its chairman Zheng Zhi told Reuters, and the fund aims to raise up to 10 billion yuan to target Western Europe, Africa and Australia for resources such as gold, copper and iron ore.

It is already investigating about 30 projects, Zheng said.

Despite the fund's small size compared to state-owned giants such as Chinalco, Minmetals, and Hunan Valin Iron & Steel, its cozy relationship with Beijing and alignment with official economic policy, is clear.

"We private entrepreneurs think it's important to secure valuable overseas resources, partly for the sake of our country," Zheng said. "We're getting a lot of support from the government for overseas asset acquisitions."

 

Tags: ,

让坏生意变出好结果

 

金融危机带来的不仅是锐减的订单,还有频发的国际商事纠纷,用国际仲裁速战速决正成为许多中国企业的选择

  已经在上海港码头了三个星期了。何焕伟无奈地抽着烟,越来越发愁。
  作为一家化工原料产品的企业老板,他三个星期前听说价值几千万元的货压在上海港就急忙赶了过来,对方不收货,因为经济危机,价格在一天天地降,谁收了货谁就等于砸在了自己手里。何焕伟所说的对方是一家爱尔兰企业,他们之前有着多年合作关系。
  这样的事情现在频繁出现,我们做国际仲裁的律师都忙坏了。君和律师事务所的陈贵阳律师告诉记者,因为全球经济不稳定,我国的外贸出口企业又很多,在经济不景气的时候,资金链都很紧张,所以类似的国际商事纠纷越来越多。要想尽快解决,它们大多数都涉及到要仲裁,而且是去国外仲裁。在这个关键的时候,就看出了仲裁条款乃至协议签订的规范有多重要,甚至涉及到企业的生死存亡。陈律师说。
 
仲裁条款埋下的隐患
  仲裁,作为一种争端解决机制的另一种途径,拥有传统诉讼所不具备的优势,比如高效、快速和终局性。达瑞律师事务所董事合伙人迈克尔·迪亚斯非常推荐国际贸易企业在签订国际贸易和国际商事合同的时候对于纠纷的解决选择仲裁,仲裁往往比诉讼更加快速,且一审终审,这非常适合现在的企业需求,否则打官司,拖都被拖死了’”,而且仲裁案件不公开审理,能够有效地保护当事人的商业秘密和商业信誉。
  但现实情况是,很多中国公司都不重视合同中仲裁条款的签订,结果为以后的纠纷埋下了很大隐患。因此,如何签订一个日后发生纠纷时对自己有利的仲裁条款非常重要。
  事实上,仲裁条款的独立性是指仲裁条款作为主合同的一个条款,尽管其依附于主合同,但其仍然可以与主合同的其他条款分离,独立于它所依附的主合同而存在,即仲裁条款不因主合同的无效、终止或被撤销而无效,也不因主合同的变更而受到影响。当主合同发生无效、终止、变更等情形时,合同的当事人依然可以依据合同中的仲裁条款向仲裁机构申请仲裁,由仲裁机构对他们之间的争议作出裁决。
  在何焕伟与那家爱尔兰公司签订的合同中规定,一旦发生纠纷,双方去香港仲裁。但是仲裁条款中并没有规定其他仲裁细节。
  这就为我们马上要打的官司埋下了隐患。何焕伟聘请的法律顾问说,一些看似非常清楚的仲裁条款,实际上却存在着许多致命伤。达瑞律师事务所的合伙人卡洛斯也认为,一些看似完备的仲裁条款,实际上没有写清楚仲裁适用什么法律,这是非常重要的。还有的条款虽然说清了仲裁地但是没有写清如何仲裁,这都是由于他们的条款在适用仲裁法和程序规则上缺乏具体性造成的。
  因此,一个完整的仲裁条款中必备的条款包括:仲裁地、仲裁语言、仲裁法、适用仲裁规则、适用的实体法、仲裁庭的组成、仲裁裁决和确认仲裁地的管辖地的同意。
  另外,律师提醒,还有一点应该注意,仲裁协议应是书面的。国际商事仲裁示范法中规定,仲裁协议如载于当事各方签字的文件中,或载于往来的书信、电传、电报或提供协议记录的其他电讯手段中,或在申诉书和答辩书的交换中当事一方声称有协议而当事他方不否认即为书面协议。在合同中提出参照载有仲裁条款的一项文件即构成仲裁协议,如果该合同是书面的而且这种参照足以使该仲裁条款构成该合同的一部分的话。
  
公司印章效力不抵亲笔签名
  马上就要去香港打官司了,何焕伟的心里还是没有底。但是他仍做出了一个决定:找一家有海外办事处,并且有经验的律师事务所。
  这点非常重要,个别公司常常因追求低成本而误大事,选错人,因为错误的理由聘请那些对国际仲裁缺乏实践经验的律师。这种错误观点,从长远来看,因为代理律师缺乏经验,在仲裁中失败,往往给公司带来更大的损失。其次,企业所聘请的律师要用国际仲裁的思维方式行事,而不是国际诉讼。路伟律师事务所仲裁专家林文杰举了一个例子:有的律师常常因为对方代理人没有当事人的公司印章,而质疑对方代理人的授权问题。然而大部分的国际仲裁法庭往往不会简单地认可公司印章的效力,一个高级经理的亲笔签名反而是更有效的授权证据。这就是仲裁和诉讼对取证环节的明显不同。
  另一方面,一些中方企业有时候很难理解国际仲裁庭对证据适用的要求。在整理何焕伟公司的一些证据时,律师建议中国企业一定不要依靠证人的直接口头证词或者传闻,一定要看重书面证据,汇编和组织文件都非常重要,因为在缺乏书面或其他形式的同类证据时,非中方仲裁员通常会怀疑中国证人证词的准确性。
  在国外打官司或者仲裁,对案情书面陈述或证人陈述的细节要求与国内的诉讼和仲裁的要求是完全不同的。中国的当事人常常没有遵循国外的规则,提交没有针对性或不认真起草的陈述。在听讼阶段,这就直接导致了中国当事人常常要求对陈述内容进行纠正,显然,这将遭到仲裁庭的拒绝,因为所有的观点证据都必须在听证之前出示完毕,不得修改。林文杰说。
 
提起反诉需要为对方付费
  对于国际仲裁的案子,大多数企业恐怕最关注的还有打官司的费用了。
  如果企业到国际商会、伦敦国际仲裁院和香港国际仲裁中心去仲裁,他们会发现在中国内地看不到的两个特点:第一,仲裁庭会命令败诉方支付部分或全部胜诉方的仲裁费(包括律师费)。第二,在进入仲裁程序以前,原告可能被要求为对方的律师费支付保证金。林文杰说:尤其是第二个特点,常常被中国企业忽视。如果中国企业在仲裁中成为被告,他常常要求他们的律师提起反诉,比如对方提起1000万美元的诉讼请求时,中国企业常常会在反诉中提出多一倍的反诉请求。
  中国当事人会惊喜地发现,他们的反诉很多时候居然被接受,但麻烦随之而来,因为对方应对反诉还需支付律师费用,中国当事人就必须为这笔费用支付保证金。此外,企业需要知道的是,商事合同当事人解决其争议的方式多种多样,但是,只有诉讼判决和仲裁裁决才对当事人具有约束力并可强制执行。仲裁裁决不同于法院判决,仲裁裁决不能上诉,一经作出即为终局,对当事人具有约束力。也就是说仲裁裁决不论在何国境内作出,均应承认具有约束力,而且经向主管法院提出书面申请,即应予以执行。陈贵阳律师说。仲裁裁决虽然可能在裁决作出地被法院裁定撤销或在执行地被法院裁定不予承认和执行,但是,法院裁定撤销或不予承认和执行的理由是非常有限的,在涉外仲裁中通常仅限于程序问题。

 

来源: 中国经营报