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China's Export Controls White Paper

Xiaoli Shi
20/01/2022

Locations

China

On 29 December 2021 China issued its first ever White Paper setting out its legal framework and policies on export controls.  This clarity will benefit businesses and institutions with links to China, whether through supply chains, or scientific or academic collaboration, and this note provides an overview of the key elements to help businesses and institutions to plan accordingly.

Regulatory overview 

China has a comprehensive legal system on export controls.  The principal legislation is the Export Control Law which came into force in October 2020 and contains provisions on systems, measures, and international cooperation on export controls. It also sets a basic institutional framework, and unified rules for export control policies, a control list, temporary controls, a restricted name list, and supervision.

The Export Control Law is supplement by China's Foreign Trade Law, National Security Law, Data Security Law, Nuclear Safety Law, Customs Law, Administrative Licensing Law, Administrative Punishment Law and Criminal Law.

The export control regime has established six regulatory areas:

  • Controlled Chemicals
  • Nuclear Export
  • Arms Export
  • Nuclear Dual-use Items and Related Technologies Export, Missiles and Missile-related Items and Technologies
  • Dual-use Biological Agents and Related Equipment and Technologies.

Institutional framework

China is implementing a policy of building a coordinated and efficient export control regime.  To this end the Chinese export controls regime involves multiple departments of the State Council and the Central Military Commission, and has established clearly assigned roles and responsibilities between relevant departments. 
The General Administration of Customs cooperates closely with these departments to regulate the export of controlled items, including investigating and handling violations, carrying out risk prevention and control, and supervising law enforcement.

Adoption of international practices

As part of modernising its export control regime, China is seeking to adopt internationally-accepted practices such as license management, end-user and end-use certificates, and general licensing.
In this respect, China has:

  • Set up an inter-agency consultation mechanism which reviews export applications.
  • Adopted a two-tiered license management model where provincial governments provide exporters with export control services, and re-submit their applications to the central government.
  • Improved measures for targeted license management including both end-user and end-use certificates, and general licenses for exporters with internal compliance programs and sound operating procedures (allowing them to export multiple times to multiple countries).
  • Established teams of experts in relevant departments on dual-use items, military products, nuclear materials, and other areas.

Enforcement

In order to strengthen its enforcement capability China has sought to strengthen cooperation within and between central departments (including the Ministry of Commerce, the Ministry of Public Security, the Ministry of Industry and Information Technology, the General Administration of Customs), and provincial governments.
The Ministry of Commerce has a dedicated enforcement and investigations teams, and other ministries have strengthened collaboration on enforcement. Various enforcement measures are deployed ranging from site visits, inquiries and investigations to detaining items and recording illegal acts on the credit records of offenders.

Intermediary service providers are also subject to control to prevent illegal exports, such as those providing services including shipping, consignment, financing, customs declaration, and third-party e-commerce platform transactions.

There has also been increased investment in enforcement equipment for the detection of radioactive, biological and chemical items, and an improvement in information sharing among enforcement and regulatory agencies.

Compliance

China is continuing to develop its export control compliance systems and the Export Control Law requires the Chinese government to issue sector-specific guidelines for export controls, guiding exporters to establish and improve their internal compliance programs and to operate in accordance with laws and regulations.

In 2021 the Ministry of Commerce revised and issued the Guiding Opinions on Establishing the Internal Compliance Program for Export Control by Exporters of Dual-use Items (“the Guidance”).  This increased the number of compliance elements required by businesses, and launched an export control information service platform to provide better guidance and services.

Compared with the guidance in 2007, the Guidance added comprehensive risk assessment, the formulation of emergency measures, and the improvement of compliance audit in the basic elements.

Exporters with an internal compliance program and sound operating procedures can benefit from being granted a general license and other facilitating measures. For instance, the Export Control Law introduces the concept of “deemed exports”, which stipulates that “controlled items provided by Chinese citizens, legal entities and non-legal organizations to foreign entities and individuals” are subject to China’s Export Control. However, it is not clear what specific activities will be “deemed exports”.

The Guidance provides two examples to demonstrate the “deemed exports” activities: (1) hire foreign employees for controlled technology related work and (2) Release controlled technology related information at trade shows and exhibitions.

However, some issues still remain unclear. For instance, the Guidance did not provide any further explanation about whether items containing controlled materials and parts should be managed in accordance with the controlled items, which has been concerned by the majority of enterprises.

 International collaboration

The White Paper also outlines China's commitment to international exchanges and cooperation on export controls, on both bilateral and multilateral levels.  For example, China has engaged in bilateral consultations and exchanges with the US, Russia, the UK, France, Germany, and the EU to take action against illegal nuclear proliferation activities, whilst also engaging with the UN and other multilateral export control mechanisms including the Nuclear Suppliers Group, the Missile Technology Control Regime, the Wassenaar Arrangement, and the Australia Group.

Fieldfisher's international trade and regulatory teams in China and London are available to assist businesses and other institutions with any export control queries or issues, and to help them plan ahead to ensure compliance with this complex regulatory regime.

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