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China: Provisions on Foreign Exchange Administration For Cross-Border Guarantees & Operational Guidelines
The State Administration of Foreign Exchange (SAFE) of the People’s Republic of China: Provisions on Foreign Exchange Administration for Cross-Border Guarantees & Operational Guidelines
SAFE is the Chinese organisation responsible for regulating the giving of cross-border guarantees and security for capital flows into and out of the People’s Republic of China. Following recent review of the guarantees regime in China by SAFE, significant reforms to the system came into force on 1 June 2014. These are widely expected to be welcomed by the international shipping community.
Two points of interest arise from the reforms. First, clarification of the effect of failure to register guarantees, and, second, clarification of the obligation to register guarantees.
Where a Chinese guarantor guarantees performance of a charterparty by a foreign (i.e. non-Chinese) charterer to a foreign shipowner, the guarantor must register the guarantee with SAFE within 15 days. A guarantee by a Chinese guarantor will not require any filing, registration or approval if the charterer is a domestic Chinese company. The validity of a guarantee is also no longer subject to SAFE approval, registration, filing or other SAFE administrative requirements, and obtaining approval from SAFE on the enforcement of security is not required – a guarantee can still be enforceable and the guarantor may face penalties for failure to register it.
The position appears to be unchanged in relation to refund guarantees. Where a Chinese yard is obliged to procure a refund guarantee pursuant to an obligation under a shipbuilding contract, prior approval of the provision of the guarantee and subsequent registration is not required. However, the Chinese bank must file general information about the guarantee with SAFE on a monthly basis.
As with all new laws, diligence should be exercised in monitoring their application. Appropriate guidance should be sought from legal advisers and SAFE to clarify the applicable filing, registration and approval requirements in the case of any uncertainty.
JIM LEIGHTON
SOLICITOR ENGLAND & WALES (FD&D)
