The General Office of the State Council of China has issued an action plan to steadily promote high-level opening up and increase efforts to attract and utilize foreign investment. The action plan proposes 24 measures across five aspects, including expanding market access, enhancing appeal to foreign investment, fostering a level playing field, facilitating the flow of innovation factors, and better aligning domestic rules with high-standard international economic and trade rules.
According to the “action plan”, measures will be taken to support data flow between “foreign-funded enterprises and their headquarters”.
China's stringent laws on outbound data transfer have made it quite difficult for foreign companies' subsidiaries in China to transfer data back to their headquarters. For years, these companies have continuously complained to the Chinese government about the difficulties with data transfer. The Chinese government is increasingly aware that without some reform in the outbound data transfer regime, this issue could become a substantial barrier to attracting foreign investment and reversing economic downturns.
The State Council's action plan for attracting foreign investment includes a provision of “support data flow between foreign-funded enterprises and their headquarters”. This might indicate that China will soon be ready to have its own Binding Corporate Rules (BCR), referring to data protection policies adhered to by companies established in the EU for transfers of personal data outside the EU within a group of undertakings or enterprises. Although China’s Personal Information Protection Law (the PIPL) copied many of GDPR’s rules, it eventually chose not to include the BCR. However, this was questioned by many Chinese legal experts, and the idea of introducing BCR into the PIPL or some other data rules has never disappeared.
The action plan also mentions that China will initiate pilot projects on data flow with the Digital Economy Partnership Agreement members, and speed up data flow cooperation mechanisms with key economic and trade partners. This shows China's more aggressive and strategic efforts to build an international data flow network under the broader policy goals of attracting foreign investment and addressing the economic downturn. We can expect more showcases in the future in this regard.
扎实推进高水平对外开放 更大力度吸引和利用外资行动方案
Action Plan for Solidly Promoting High-level Opening Up and Making Greater Efforts to Attract and Utilize Foreign Investment
外商投资是参与中国式现代化建设、推动中国经济与世界经济共同繁荣发展的重要力量。扎实推进高水平对外开放、更大力度吸引和利用外资,必须坚持以习近平新时代中国特色社会主义思想为指导,完整、准确、全面贯彻新发展理念,更好统筹国内国际两个大局,营造市场化、法治化、国际化一流营商环境,充分发挥我国超大规模市场优势,巩固外资在华发展信心,提升贸易投资合作质量和水平。为贯彻落实党中央、国务院决策部署,现制定如下行动方案。
Foreign investment is an important force in China's modernization, the promotion of common prosperity, and the development of the Chinese economy and the world economy. To solidly promote high-level opening up and make greater efforts to attract and utilize foreign investment, we must adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully and accurately implement the new development concept, better coordinate the domestic and international situations, create a first-class market-oriented, rule-of-law-based, and internationalized business environment, fully leverage the advantages of our country's vast market scale, consolidate the confidence of foreign investment in China's development, and enhance the quality and level of trade and investment cooperation. The following action plan is hereby formulated to implement the decisions and arrangements of the Party Central Committee and the State Council.
一、扩大市场准入,提高外商投资自由化水平
I. Expand market access and increase the level of liberalization for foreign investment
(二)开展放宽科技创新领域外商投资准入试点。允许北京、上海、广东等自由贸易试验区选择若干符合条件的外商投资企业在基因诊断与治疗技术开发和应用等领域进行扩大开放试点。支持信息服务(限于应用商店)等领域开放举措在自由贸易试验区更好落地见效。
2. Conduct pilot projects to relax market access for foreign investment in the field of technological innovation. Allow a number of qualified foreign-invested enterprises in free trade pilot zones such as Beijing, Shanghai, and Guangdong to conduct expanded opening-up trials in areas such as genetic diagnosis and treatment technology development and application. Support open measures in areas such as information services (limited to app stores) to yield better results in free trade pilot zones.
四、畅通创新要素流动,促进内外资企业创新合作
IV. Facilitate the flow of innovative factors and promote innovation cooperation between domestic and foreign-funded enterprises
(十七)支持外商投资企业与总部数据流动。规范数据跨境安全管理,组织开展数据出境安全评估、规范个人信息出境标准合同备案等相关工作,促进外商投资企业研发、生产、销售等数据跨境安全有序流动。制定粤港澳大湾区跨境数据转移标准,依托横琴粤澳深度合作区、前海深港现代服务业合作区等重大合作平台,建立港澳企业数据跨境流动机制,探索建立跨境数据流动“白名单”制度,稳步推动实现粤港澳大湾区内数据便捷流动。
17. Support the flow of data between foreign-invested enterprises and their headquarters. Standardize the management of cross-border data security, organize assessments of data outbound security, standardize the filing of contracts for the outbound transfer of personal information, and promote the orderly flow of data across borders for research and development, production, and sales by foreign-invested enterprises. Develop standards for cross-border data transfer in the Guangdong-Hong Kong-Macao Greater Bay Area, rely on major cooperation platforms such as the Hengqin Guangdong-Macao In-depth Cooperation Zone and the Qianhai Shekou Modern Service Industry Cooperation Zone, establish mechanisms for the cross-border flow of data for Hong Kong and Macao enterprises, explore the establishment of a "white list" system for cross-border data flow, and steadily promote the convenient flow of data within the Guangdong-Hong Kong-Macao Greater Bay Area.
五、完善国内规制,更好对接国际高标准经贸规则
V. Improve domestic regulations to better align with international high-standard economic and trade rules
(二十二)健全数据跨境流动规则。科学界定重要数据的范围。全面深入参与世界贸易组织电子商务谈判,推动加快构建全球数字贸易规则。探索与《数字经济伙伴关系协定》成员方开展数据跨境流动试点,加快与主要经贸伙伴国家和地区建立数据跨境流动合作机制,推动构建多层次全球数字合作伙伴关系网络。
22. Improve rules for cross-border data flow. Scientifically define the scope of important data. Fully engage in World Trade Organization e-commerce negotiations and accelerate the establishment of global digital trade rules. Explore pilot projects for cross-border data flow with members of the "Digital Economy Partnership Agreement." Accelerate the establishment of mechanisms for cross-border data flow cooperation with major economic and trade partners. Promote the construction of a multi-tiered global digital cooperation partnership network.