Right after quite a few rounds of revisions, China lastly adopted its very first Export Control Regulation (ECL), which went into pressure on December 1, 2020.

In general, we take into account the ECL normal, obscure and difficult to be carried out in practice devoid of further more adopting implementation procedures. It incorporates quite a few principles from the US export handle guidelines, but with few particulars. Offered that the managed item list and the implementation policies are not still posted, the real implementation of the law will most likely arise future 12 months. Under, we summarize the highlights of the ECL.

Scope of Coverage

The ECL regulates military, nuclear, and dual-use products, as nicely as other products and solutions relating to countrywide stability. In this feeling, the ECL would seem to be a mix of the US International Traffic in Arms Rules (ITAR), the US Export Administration Laws (EAR) and regulations regulating nuclear and other national protection-related merchandise. Supplied the wide coverage and the have to have to regulate armed service and dual-use items in different ways, the ECL has different chapters and regimes that apply to army objects and twin-use merchandise. For illustration, only certified exporters may well offer with army products, although twin-use products are not topic to the rule. For the function of this posting, we emphasis only on twin-use objects.

Managed Goods

The controlled merchandise underneath the ECL consist of products, systems (like technical products) and solutions, which is broader than the EAR, which does not protect services. The managed objects will be specified in a handle checklist nonetheless to be posted.

In addition to the things specified on the control checklist, the ECL authorizes “temporary control” for no far more than two many years on objects that are not shown but the export management administration authority deems necessary to manage possibly usually or to a distinct nation or person.

Moreover, the ECL supplies that if an exporter appreciates, or should to know, that exporting particular products further than the management lists will endanger nationwide stability, or will be utilized for the purpose of proliferation or terrorism, the exporter need to also implement for a license.

Administration Authority and Handle Lists

The ECL authorizes the State Council and the Central Armed service Commission to build “export manage administration authorities” to implement the law, which show up to consist of three authorities, each respectively responsible for military, dual-use and nuclear things. In the case of dual-use goods, it is thought that the Ministry of Commerce (MOFCOM) will be the administrative authority. As a result, the list of managed twin-use items will be drafted by MOFCOM. At this moment, it is unclear when the first managed list will be printed and in what sort.

It is value noting that MOFCOM also publishes and oversees the “catalogue of technologies that are prohibited or limited from exporting” in accordance to the Regulation on Technology Import and Export. It is expected that the twin-use controlled listing may well be drafted on the foundation of the present “catalogue of technologies that are prohibited or limited from exporting.”

The ECL offers that the authorities shall examine the risk levels of distinct international locations to choose relevant command measures. This might refer to a thing very similar to the Region Chart underneath the EAR.

Export Deemed Export and Re-export

The ECL defines “export” to suggest “cross-border transfer of managed objects from the PRC, and provision of controlled merchandise by citizens, lawful folks and other corporations of the PRC to foreign pure individuals, authorized people or other corporations.” This second component of the definition looks to be parallel to the strategy of “deemed export” underneath the EAR, e.g., the transfer of managed products to international people even in China.

The ECL more supplies that the regulation also applies to transit transportation, “re-export” or export from a bonded zone in China to abroad. The query is whether the term “re­export” has the identical this means as that beneath the EAR, i.e., no matter whether the ECL has extraterritorial jurisdiction and applies to foreign goods that include the controlled items in which the de minimus rule or the “direct item rule” beneath the EAR are applicable.

In a draft Export Command Regulation revealed in 2017 (2017 Draft), there existed a provision especially relating to re-export of managed objects right after leaving China, foreign products that comprise controlled things and a principle equivalent to the de minimus rule. This provision was taken off fully from the ECL, which seems to recommend that China is refrained from doing exercises extraterritorial jurisdiction.

As a result, it is our watch that the “re-export” underneath the ECL possibly refers to a uncomplicated re-export of the controlled merchandise after leaving China, but not foreign items that have the controlled products. For case in point, if a controlled merchandise is exported from China to State A and then without any processing or adjust, instantly re-exported to Nation B, that transfer could nonetheless be topic to the ECL. Even so, if the controlled product is processed in State A and gets to be a diverse item, the export of the completed solution to Place B will not be matter to the ECL.

License Requirements

The ECL presents that a license is needed for exporting all managed goods. It does not mention principles like “no license required” or “license exception” as those below the EAR, which was talked about in the 2017 Draft. When determining whether to concern a license, the authorities will consider the pursuing components:

  1. International obligations and commitments

  2. Nationwide stability

  3. Kind of export

  4. Sensitivity amounts of merchandise

  5. Spot countries or areas of export

  6. Finish customers and conclude use

  7. Credit score file of export operators

  8. Other aspects specified by laws and administrative rules

End Consumer and Conclude Use Regulate

There is no definition of “end-user” or “end-use” beneath the ECL, but for the objective of making use of for the export control license, the exporters are needed to submit info about the close use and the conclude person. The conclusion person have to commit not to adjust the close use or transfer the controlled goods to a 3rd occasion. The export handle administration authorities will establish a method to access the possibility stages of conclusion use and conclusion buyers.

The ECL looks to build a blacklist system that is equivalent to the “entity list” under the EAR. Importers and stop consumers (not exporters) could be additional to the list less than the following situations. Exporters could be purchased to stop all transactions with the blacklisted events unless of course a license is acquired in unique conditions.

  1. Violating the dedication of finish person or conclusion use

  2. Likely endangering national safety

  3. Employing the controlled things for terrorism needs

When compared to the not too long ago adopted “unreliable entity list” (UEL) that is also monitored by MOFCOM, the blacklist underneath the ECL seems to be much more identical to the Entity Checklist under the EAR in a feeling that the applicable limits are limited to export. In the situation of the UEL, on the other hand, the prohibitions or steps could be substantially broader, including importing and exporting, as perfectly as limits on expenditure and visas/immigration.

3rd-get together Provider Provider

The ECL prohibits any individual to knowingly deliver company, consignee, shipping and delivery, customs clearance, e-commerce, finance or other products and services to exporters that are engaged in functions towards the ECL.

Inner Compliance Plan

The ECL calls for export operators to build an internal compliance software to comply with the ECL. Exporters with very good records of compliance will be granted with license facilitation.

Penalties and No Attractiveness

The penalties for violating the ECL involve a great, company suspension, and denial of an export license and export privilege for 5 several years. The greatest good is 10 instances the unlawful cash flow or RMB5 million, whichever is increased. The conclusion of punishment made by the export management administration authorities will be ultimate and are unable to be appealed to courts.

Make sure you be aware that the above penalties utilize only to “export operators” and 3rd-bash company vendors as described over, i.e., Chinese individuals or corporations, not importers and conclusion end users who might be matter to the “blacklist” as described previously mentioned.


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