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China hits foreign investors with new hurdles
Wednesday, August 30, 2006

BEIJING -- China's government has been throwing up some new hurdles for foreign investors in recent months, including increased scrutiny of foreign-backed mergers and proposed restrictions in areas from banking to retailing to manufacturing.

Beijing isn't being led by a wave of popular anti-foreign sentiment, of the kind that was on display, for example, after the U.S. bombing of the Chinese Embassy in Belgrade in 1999. Rather, it's the government's growing preoccupation with helping the expanding universe of Chinese companies and pressing domestic issues such as poverty and wealth disparities.

Top leaders insist that fast-growing China, the developing world's biggest recipient of foreign investment for many years running, isn't closing off its economy. But because the new restrictions are part of a broader policy shift -- rather than some temporary interest in penalizing foreign businesses -- it's a potentially scarier development for foreign companies.

Increasingly savvy domestic companies -- some of whom have been stymied in their efforts to expand overseas -- are seizing the moment to push for moves they hope will strengthen them against outside competitors.

In automobile production, for instance, a business long dominated by foreign companies operating through joint ventures, the government said in March that it won't approve any new expansion of capacity unless companies meet requirements, as yet unspecified, to make local brands and support domestic product development.

That policy should give a boost to companies like Shanghai Automotive Industry Corp., which has long had ventures with General Motors Corp. and Volkswagen AG but now says it wants to make cars under its own name and challenge the big brands for a share of the market.

"As local Chinese companies become more competitive, they are becoming more sophisticated in using whatever means are available to them to maintain their position," says Henry Wang, a lawyer with DLA Piper Rudnick Gray Cary in Shanghai. "They are using a combination of the media and government help."

Another example is a proposed rule restricting the expansion of large-scale chain outlets, which is largely the result of intensive lobbying by Chinese retailers, according to people familiar with the matter. The rule, if passed, is likely to put foreign companies such as Wal-Mart Stores Inc. and Carrefour SA at a disadvantage. Another set of rules issued in July could make it more difficult for foreign companies to operate Internet businesses, while banking regulators in August circulated draft rules that are likely to make it more difficult for foreign banks to expand their retail branches.

China these days lets foreign businesses compete in its domestic markets to an extent that few if any developing countries have matched. Since joining the World Trade Organization in 2001, China has systematically stripped away many of the previous barriers to entry for foreign companies. Roughly 280,000 companies backed by foreign investors operate in China, doing everything from delivering packages to building cars and selling toothpaste. But while China continues to attract staggering amounts of new foreign investment -- on the order of $60 billion a year -- those inflows have peaked over the past couple of years and are unlikely to increase further unless a major new set of opportunities crops up.

The government's inward turn in recent months is creating questions about China's openness at a pivotal time. There is growing concern that the government's pace of market-opening reforms could slow markedly or even stop once China completes most of its obligations to the WTO at the end of this year.

Frank Lavin, U.S. undersecretary of commerce for international trade, said that the recent calls to limit foreign investment are a "worrisome trend." China's leaders may not have the appetite for further reforms that would benefit foreign business, he said in a speech this month to U.S. businesspeople in Beijing. Meanwhile, U.S. Trade Representative Susan Schwab said this week she is watching for any signs of a substantive shift toward economic nationalism in China.

That sentiment also threatens to throw up new obstacles for foreign companies interested in acquiring Chinese businesses. The China Bearing Industry Association is publicly opposing a preliminary agreement by Schaeffler Group of Germany to buy Luoyang Bearing Group, one of the major domestic firms in the sector. In August, the China Cement Association asked the government to review any foreign acquisitions of domestic cement companies that exceed $100 million in size. Even soybean processors are getting their day in the sun, as lobbyists in July asked the government to restrict any expansion of the strong foreign presence in the sector.

Though those campaigns haven't yet yielded results, there are other instances of local industry groups getting more directly involved in policymaking. One example: After the government in June published a document declaring the machinery and capital-equipment industry a "pillar" of the national economy that would receive special support, the China Machinery Industry Federation worked with officials to draft specific policies. A key provision: ensuring extra scrutiny of any foreign-led acquisitions in the industry. The new policy has contributed to the uncertainty around private-equity firm Carlyle Group's attempt to buy construction-equipment maker Xugong Group, which has been held up in the approval process for months.

"There's definitely a feeling that investment opportunities are tightening up, that there are more difficulties than before," said Elizabeth Knup, managing director at Kamsky Associates, a Beijing-based consultancy firm that helps foreign firms invest in China.

These different regulatory efforts haven't been particularly well-coordinated, suggesting that the government is responding ad-hoc to individual situations, rather than pursuing a broad agenda of restricting foreign business activity. And there have been recent signs that the government is trying to rein in some of the anti-foreign rhetoric, by giving prominent media exposure to those who support increased economic openness.

"Foreign companies don't need to worry about China backtracking," says Wang Zhile, director of the Research Center on Transnational Corporations, a body that advises the central government. Mr. Wang says those calling for restrictions on foreign investment do not represent mainstream opinion in the government.

Still, the succession of regulatory changes and louder criticism of foreign business coincides with a bigger shift in China's priorities. Since taking power in 2003, the administration of President Hu Jintao and Premier Wen Jiabao has said they want China's growth to be more sustainable, more domestically focused and less wasteful of resources -- a shift from the previous administration's focus on fast, export-led growth. The government also recently released its latest five-year plan -- the country's 11th -- which calls for a concerted push to make sure that Chinese companies have the trappings of 21st-century businesses, from a storehouse of patents and trademarks to recognizable brand names.

As part of that, the government is giving itself new tools to be more discriminating about foreign investment. At the end of last month, China's securities regulator published a new takeover code, which declared that acquisitions involving publicly-traded companies "must not harm national security or the public interest."

This month, the Ministry of Commerce declared that it will have to approve any foreign acquisitions that could affect economic security, or involve "key" domestic industries or well-known trademarks. Lawyers say the provisions give the government broad discretion to intervene in deals.

A think tank affiliated with the National Development and Reform Commission, the chief economic planning agency, also said in a report this month that China should "draw on international experience" and set up a government organization to assess the impact of foreign purchases of state-owned enterprises. The proposal mimics the Committee for Foreign Investment in the U.S., a panel that reviews the national-security implications of foreign transactions and can recommend that the president cancel a deal.

Analysts and industry watchers say the extent to which China has already opened its market has made local businesses fearful they cannot survive tough foreign competition. On top of that, a nascent push for Chinese businesses to expand overseas has also been stymied by political difficulties and the firms' own inexperience with international practices. Combined with the persistent criticism of China's low-cost exports for taking jobs away from U.S. and European manufacturers, there is increasingly a feeling that China owes foreign companies no favors.

"It's a comfortable time to get tougher with foreigners. Having more of them hang around is not the top priority," says Nandani Lynton, the Beijing-based vice president for Asia at Thunderbird, the business school.

First published on August 30, 2006 at 12:00 am