On 8 March 2023, the People’s Republic of China ("PRC") formally acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents ("Convention") (available here). The Convention will come into force in the PRC on 7 November 2023. The accession to the Convention will have the effect of abolishing the traditional requirement of legalisation, replacing the long and costly legalisation process with the issuance of a single Apostille certificate by a competent authority in the place where the document originates. The PRC has designated the Ministry of Foreign Affairs as its competent authority. Authorised by the Ministry of Foreign Affairs of the PRC, the Foreign Affairs Offices of provinces, autonomous regions and municipalities directly under the central government can issue the certificates relating to public documents emanating from within their respective administrative areas.
There are also several issues of note regarding the PRC’s accession to the Convention.
- The Convention explicitly defines "public documents" in Article 2, which includes:
- documents emanating from an authority or an official connected with the courts or tribunals of the State;
- administrative documents;
- notarial acts;
- official certificates which are placed on documents signed by persons in their private capacity.
However, there is no corresponding definition of "public documents" under the PRC laws. One similar concept is "public documentary evidence" (公文书证) under the Rules of Evidence issued by the PRC Supreme Court in 2020, but courts in different provinces still have different interpretations regarding the definition and scope of "public documentary evidence". Therefore, such key issue regarding the scope and definition of "public documents" to which the Convention could apply is still subject to further interpretation by the PRC legislation authority.
- According to Item 2 of the declarations ("Declarations") issued by the PRC, the Convention will not be applicable between the PRC and those contracting states that the PRC does not recognise as sovereign states. According to Item 4 of the Declarations, Item 2 of the Declarations applies to the Hong Kong Special Administrative Region and the Macao Special Administrative Region (which are part of the PRC but separate jurisdictions), which means the legalisation of foreign public documents between the Chinese Mainland and Hong Kong or Macao will continue to follow the current mechanisms.
On 24 February 2023, the Cyberspace Administration of China ("CAC") released the Measures for the Standard Contract for Cross-border Transfers of Personal Information (个人信息出境标准合同办法) ("Measures") and the corresponding Standard Contract for Cross-border Transfers of Personal Information (个人信息出境标准合同) ("Standard Contract"), which will come into force on 1 June 2023. The Measures provide a six-month grace period from its effective date (i.e. before 1 December 2023) for entities/any relevant parties to rectify any non-compliance with the Measures.
Only a Personal Information Processor ("PIP") who satisfies all of the following conditions may use the method of signing a Standard Contract to export personal information:
- It is not a critical information infrastructure operator.
- It processes the personal information of less than one million people.
- It has exported the personal information of fewer than 100,000 people since 1 January of the previous year.
- It has exported sensitive personal information of fewer than 10,000 people since 1 January of the previous year.
According to the Measures, before transferring the personal information abroad, the PIP must first perform a personal information protection impact assessment, focusing on the legality, risk of the transfer, and the overseas recipient's undertakings and capabilities, etc. The PIP and its recipient shall strictly follow the version of the Standard Contract appended to the Measures but may agree on other terms. The PIP then must file the impact assessment report and executed Standard Contract with the cyberspace administration of the province or equivalent where it is located.
Compared with the last version of the Standard Contract issued by CAC last year for public comments, there are no substantial changes to the obligations of the parties under the final version of the Standard Contract. Instead, it mainly refines and optimises the content of obligations and the method of coordination between the parties. The PIP is responsible for informing and obtaining consent from the personal information subject, ensuring the overseas recipient's compliance, and responding to regulators' inquiries, etc. The overseas recipient must process personal information as agreed, minimise the impact on individuals, safeguard data security, and inform the PIP and regulators of any raised risks. However, in terms of the personal information subject’s rights, it is noteworthy that the final version further specifies that the personal information subject, as a third-party beneficiary, may initiate legal proceedings in respect of the dispute under this contract to the people's court with jurisdiction in China.
On 17 February 2023, the China Securities Regulatory Commission ("CSRC") published new regulations for the filing-based administration of overseas securities offering and listing by domestic companies, effective from 31 March 2023. The regulations comprise six sets of documents, including the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies (境内企业境外发行证券和上市管理试行办法) ("Measures") and five supporting guidelines. The new approach replaces the current approval-based system.
Under the Measures, direct and indirect overseas securities offering and listing activities by domestic companies must comply with the filing requirements. In terms of indirect overseas offering and listing, the Measures set out the conditions that, if met on a substance-over-form basis, constitute indirect overseas securities offering and listing activities by domestic companies. After such direct and indirect offering and listing activities, these domestic companies are also required to comply with reporting requirements when certain material events occur, such as change of control. Separately, overseas securities companies acting as sponsors or lead underwriters must file with CSRC and submit annual reports on their business activities, pursuant to the Measures.
Regarding how the new filing-based regime would apply to the domestic companies with a variable interest entity ("VIE") structure, CSRC responded that it would seek the views of the relevant authorities and these companies would be allowed to file if their VIE structures comply with applicable PRC laws and regulations.
The promulgation of the Measures indicates that the regulatory system for overseas offerings and listings by domestic companies has officially stepped into a new era of a comprehensive filing-based system and closed many previous regulatory gaps. Henceforth, in many cases of domestic companies seeking for a listing on the Singapore Exchange ("SGX") – for example, indirect offering and listing on SGX of the shares of entities incorporated outside of the PRC and adopting a "red-chip" structure – filing procedures will have to be carried out with CSRC. For a detailed analysis on the Measures, please click here to read our Legal Update.
