CHINA LAW DIGEST NEWSLETTER
Vol. 2, No.6 - May 20, 2003
TOPICS THIS ISSUE:
Arbitration:- Arbitration Rules of the China International Economic and Trade Arbitration Commission for Financial Disputes
Trademark: - Rules on Recognition and Protection of Well-known Trademarks
Social Insurance:- Regulations on On-Job Injury Insurance
Foreign Exchange:- Notice on Several Questions Concerning Cancellation of Certain Foreign Exchange Administration Approvals Upon Current Account
Tax:- Supplementary Notice on Foreign Invested Enterprises Enjoying Income Tax Preference for Increased Investment
LEHMAN, LEE & XU OPENS SHENZHEN OFFICE Lehman, Lee & Xu is pleased to announce the opening of its new office in Shenzhen, Guangdong Province. Please direct all inquiries to attorney Zdravko Jelic at | |
Arbitration Rules of the China International Economic and Trade Arbitration Commission for Financial Disputes
Issuing Date: April 4, 2003
Issuing Authority: China International Economic and Trade Arbitration Commission (CIETAC)
Effective Date: May 8, 2003
Summary
In order to settle disputes arising from financial transactions in a fair and speedy manner, CIETAC provided detailed arbitration procedures in the Rules. Financial transactions refer to the transactions between financial institutions, or between financial institutions and other legal entities or individuals concerning capital financing, purchase and transfer of financial instruments, including but not limited to transactions as follows: loans, deposit certificates, secured transactions, letter of credit, negotiable instruments, bonds, collections, funds transaction and escrow, factoring arrangements and others.
The Rules will be applicable only if the parties of the arbitration have mutually agreed to use the Rules to settle the financial disputes; if there is no such agreement reached by the parties, the general CIETAC Arbitration Rules will apply.
Compared with the general CIETAC Arbitration Rules, the Rules provide shortened arbitration procedures and reduced arbitration fees, which make the arbitration procedure more economical to the parties. The time limit to appoint an arbitrator is shortened from 20 days to 7 days; defense shall be submitted within 15 days instead of 45 days; arbitration award shall be made within 45 days from the date the arbitration tribunal is established instead of 9 months in the general CIETAC procedures.
The following table shows how much the parties will save on arbitration fees when applying the Rules compared with the general CIETAC Arbitration Rules.
Amount of Claim (RMB) | Arbitration FeesUnder general CIETAC Rules | Arbitration Fees Under Financial Dispute Rules |
1,000,000 yuan or less | 3.5% of the claimed amount, minimum 10,000 yuan | 1.5% of the claimed amount,minimum 8,000 yuan |
1,000,000 to 5,000,000 yuan | 35,000 yuan plus 2.5% of the excess over 1,000,000 yuan | 15,000 yuan plus 1% of the excess over 1,000,000 yuan |
5,000,000 to 50,000,000 yuan | 135,000 yuan plus 1.5% of the excess over 5,000,000210,000 yuan plus 1% of the excess over 10,000,000 yuan | 55,000 yuan plus 0.75% of the excess over 5,000,000 yuan |
50,000,000 yuan or more | 610,000 yuan plus 0.5% of the excess over 50,000,000 yuan | 392,500 yuan plus 0.5% of the excess over 50,000,000 yuan |
Rules on Recognition and Protection of Well-known Trademarks
Issuing Date: April 17, 2003
Issuing Authority: State Administration of Industries and Commerce (SAIC)
Effective Date: June 1, 2003
Summary
Well-known trademarks are defined as trademarks that are widely known by the relevant public and have high reputation in China. The relevant public includes consumers of the goods or services for which the mark is used, operators in relation to the manufacturing or providing of the goods or services for which the mark is used; and sales person and other relevant personnel in connection with the sales channels of the goods or services for which the mark is used.
The following documentation /information can be used as evidence to prove the mark is well-known:
i. Evidence showing the degree of knowledge of the mark among relevant public;
ii. Evidence showing the period of use of the mark, which may include the history and covered areas of the use and registration of the mark;
iii. Evidence showing the duration, degree and geographic coverage of the promotion of the mark, which may include the advertisement /promotional method, covered areas, kinds of media and quantity of advertisements;
iv. Evidence showing the mark has ever been protected as a well-known mark, which may include the mark has ever been protected as a well-known mark in China and other countries or regions;
v. Other evidence showing the mark is well known, which may include the output, sales volume, income, net income and sales areas of the goods or services for which the mark is mainly used for in recent three years.
If trademark owner believes any preliminarily approved and published trademark or registered trademark is in violation of Article 13 of the Trademark Law, he can file an opposition with the Trademark Office or Trademark Review and Adjudication Board in accordance with the Trademark Law and the Implementing Regulations and submit simultaneously documentation that can be used as evidence to prove his mark is well known. Trademark owner may also file a written complaint with local Administration for Industry and Commerce where the alleged violating party is located, requesting to stop the alleged violating party from using, and submit documents that can be used as evidence to prove his mark is well-known.
Regulations on On-Job Injury Insurance
Issuing Date: April 16, 2003
Issuing Authority: State Council
Effective Date: January 1, 2004
Summary
The Regulations aim to secure employees who suffer on-job accidents injury or occupational diseases with medical care and economical compensation and disperse the on-job risks of employers. The Regulations provide detailed rules on the collection and usage of on-job injury insurance funds, recognition of on-job injury, how to determine employee's working ability after the on-job injury, on-job injury insurance treatment, supervision on implementing of the Regulations and liabilities for violating the Regulations.
The Regulations made it a mandatory requirement to have on-job injury insurance as part of social insurance. All enterprises should participate on-job injury insurance. The on-job injury insurance premium should be fully paid by employers not employees. The insurance premium is calculated on the basis of total employee salaries.
Violation of employers by hiding number of employees or total employee salaries will result in a fine of more than one time but less than three times of the hidden employee salaries. If an employer fails to participate in the on-job injury insurance, should any on-job injury happened should be compensated by the employer at its own expenses in accordance with the Regulations.
Notice on Several Questions Concerning Cancellation of Certain Foreign Exchange Administration Approvals Upon Current Account
Issuing Date: April 2, 2003
Issuing Authority: State Administration of Foreign Exchange (SAFE)
Effective Date: May 1, 2003
Summary
SAFE cancelled five types of foreign exchange approvals upon certain current account items, including:
- The approval on deposit or trade accessories fees payable under border barter transactions;
- The approval on one time foreign exchange cash payment or exchange of US$50,000 worth of Renminbi for the foreign exchange under current account wired into or brought into China by individuals;
- The approval on selling in Renminbi for the duty-free goods imported by duty-free shops due to damages of goods or overstock; and the approval on usage of foreign exchange on importing duty-free goods;
- The approval on wiring out individual foreign exchange funds sourcing overseas via original route;
- The annual review on ocean fishing foreign exchange balance of ocean fishing enterprises.
Supplementary Notice on Foreign Invested Enterprises Enjoying Income Tax Preference for Increased Investment
Issuing Date: March 28, 2003
Issuing Authority: State Administration of Tax (SAT)
Effective Date: As of the issuing date.
Summary
The supplementary Notice further clarifies how to calculate tax preference treatment for repeatedly increased total investment. After foreign invested enterprises (FIE) paid up its registered capital, if the FIE repeatedly increase investment and thus form new production projects, the new projects shall be regarded as one project when calculating increased registered capital and enjoy applicable tax reduction and exemption. The tax preference term shall be counted from the profitable year of the production projects as the result of first time investment increase.
China Lawyers, Notaries, Patent, Copyright and Trademark Agents
http://www.lehmanlaw.com
Beijing Office | Shanghai Office |
6th floor, Dongwai Diplomatic Office Building
23 Dongzhimenwai Dajie
Beijing 100600 China
Tel.: (86)(10) 8532-1919
Fax: (86)(10) 8532-1999
Email: mail@lehmanlaw.com | Suite 1310, Kerry Centre
No. 1515, West Nanjing Road
Shanghai 200040 China
Tel: (86)(21) 6288-2698
Fax:(86)(21) 6288-2699
Email: shanghai@lehmanlaw.com |
The China Law Digest News is intended to be used for news purposes only. It should not be taken as comprehensive legal advice, and Lehman, Lee & Xu will not be held responsible for any such reliance on its contents.
Unsubscribe |
Internet Explorer users, please click here: chinalawdigest@lehmanlaw.com?subject=Remove%20China%20Law%20Digest%20%21*ADDITIONAL_FIELD1*%21 |
Netscape users, please send email to: chinalawdigest@lehmanlaw.com
with
Remove China Law Digest !*ADDITIONAL_FIELD1*!
in the Subject Line. |
