关于外商投资电力项目的若干规定 Foreign Investment in Power Projects Several Provisions

电政法[1997]155号
（Promulgated by the Ministry of Power Industry on， and became effective as of， 20 March 1997.）
颁布日期：19970320 　实施日期：19970320 　颁布单位：电力部

　　PART ONE　GENERAL PRINCIPLES

　　Article 1　These Provisions have been formulated in accordance with the laws and regulations of the People's Republic of China in order to actively， rationally and effectively make use of foreign investment， to speed up the development of the power industry， to protect investors' legal rights and interests， and to guide and standardize work on foreign investment in power projects.

　　Article 2　These Provisions apply to investment within China in the development and construction of power supplies by all economic organizations and individuals from outside China （hereafter referred to as foreign investors）。

　　Article 3　Use of foreign investment in power supply development and construction projects （hereafter referred to as power projects） must follow the principles of equal and mutual benefit， joint enjoyment of profit， joint bearing of risk and reciprocal rights and obligations.

　　Article 4　Foreign investment power projects must abide by China's laws and regulations and be in accord with national policy on industry and with power development plans. They should be examined and approved in accordance with the procedure for reporting and approving foreign investment power projects.

　　Article 5　Use of foreign investment in power projects should take into consideration the following factors， plus others as necessary：

　　1. the power required for regional development；

　　2. financial costs on the international capital market；

　　3. the ability of the area to be supplied to bear the cost of the electricity；

　　4. the financial structure of the project； and

　　5. the plan for balancing foreign exchange.

　　Article 6　An economic evaluation of foreign investment power projects should be carried out in accordance with the relevant provisions of the related guiding opinions and implementing rules on strengthening economic evaluation of power foreign investment projects.

　　Article 7　Foreign investment power projects should be subordinate to the principle of implementation by the State of unified planning， unified construction， unified management and unified administration of the power grid.

　　PART TWO　THE SCOPE AND METHOD OF FOREIGN INVESTMENT

　　Article 8　The scope of foreign investment：

　　1. new thermal power stations （including joint production of heat and electricity）；

　　2. new hydroelectric power stations （including pumped energy storage power plants）；

　　3. new nuclear power stations （or plants）；

　　4. new energy source or new technology electricity generating projects； and

　　5. expansion and technical upgrading of old power stations.

　　Article 9　Foreign investment can take the following forms：

　　1. joint equity with a Chinese partner to form a Sino-foreign equity joint venture；

　　2. co-operation with a Chinese partner to form a Sino-foreign co-operative joint venture；

　　3. independent foreign investment to form a wholly foreign-owned enterprise， except in the case of nuclear power projects and hydroelectric projects involving over 250，000 kilowatts；

　　4. purchase of shares issued by the Chinese partner outside China or of B-shares inside China；

　　5. make an account of inventoried assets at hand of a power station， purchase of part of the Chinese partner's existing shareholding to the power station， and to form an equity or co-operative joint venture with the Chinese partner；

　　6. establishment of a project company through the signing of a franchise agreement with the government to invest in a build-and-operate power project （hereafter referred to as franchise BOT investment）； and

　　7. other forms approved by the govern

ment.

　　Article 10　The State shall encourage foreign investment in hydroelectric， nuclear， new energy source， new technology and water-pumped energy storage power projects， in technical upgrading of old power station projects and in power supply projects in the central and western regions within China. The State requires that new thermal power stations must in general use high parameter， high efficiency generators with unit capacity of over 300，000 kilowatts. The State shall severely restrict condenser-type thermal generators and conventional oil-fired generators of under 25，000 kilowatts， together with other high energy consumption and highly polluting projects.

　　Article 11　The Chinese side， holding State-owned assets， must have the controlling shareholding in or control over nuclear power plants or hydroelectric plants with total installed capacity of over 250，000 kilowatts， which are constructed and operated by Sino-foreign equity and co-operative joint ventures.

　　Article 12　The commercial operating term （co-operative operating term） for Sino-foreign equity or co-operative joint venture power projects shall in general not exceed 20 years for thermal power stations， not exceed 30 years for hydroelectric power stations and not exceed 25 years for nuclear power stations （or plants）。 The term for equity or co-operative joint venture operating projects involving use of a power station's inventoried assets can be decided in accordance with the results of the asset evaluation and with the actual circumstances， but must not exceed the limits stated above.

　　The situation regarding accounts settlement and transfer at the conclusion of an equity or co-operative joint venture term， and any accounts settlement and transfer necessitated by termination of the contract during the joint operating term， should be clearly stipulated in the company contract and articles of association in accordance with the relevant Chinese laws and regulations.

　　The operating term， accounts settlement and transfer of power stations constructed wholly by foreign investment shall be carried out in accordance with the provisions of the preceding paragraph.

　　Article 13　The registered capital of and proportion of total investment in Sino-foreign equity and co-operative joint venture power stations， and the proportion and method of capital contribution by the Chinese and foreign partners， should be specified in the contract in accordance with the relevant laws and regulations.

　　PART THREE　EXAMINATION OF PROJECTS

　　Article 14　When reporting a foreign investment power project， notarized legal documents and evidence reflecting the foreign company's legal status and capital creditworthiness should be submitted.

　　Article 15　The Ministry of Power Industry shall be responsible for examining or examining and approving the following：

　　1. proposal documents and feasibility studies for Sino-foreign equity and co-operative joint venture projects （including purchase of part of shareholding in the Chinese partner's power station）；

　　2. reports on wholly foreign-owned projects；

　　3. contracts for Sino-foreign equity and co-operative joint veutures， and the articles of association of jointly-operated companies and of wholly foreign-owned enterprises；

　　4. power purchase contracts； and

　　5. other agreements that must be examined or examined and approved.

　　Article 16　Once the Ministry of Power Industry has examined the documents relevant to the application for approval it should decide whether or not to agree to report those which according to the relevant provisions should be reported to the relevant departments for approval. Those which it agrees to report should be reported in writing to the relevant departments for approval. If it decides not to agree to report， it should notify the work unit applying for the project.

　　Article 17　The points in

the project proposal document to be examined by the Ministry of Power Industry shall include： whether or not the project is in accord with State policy on industry； whether or not it is in accord with plans for power development； whether or not it is in accord with the distribution of production capacity of the area in which the project is situated； whether or not it is in accord with the requirements for environmental protection； the foreign company's legal status， funds and creditworthiness； and the operating method， the total investment， the circumstances of all parties， the financial structure and the method and conditions of financing etc.

　　The points in the feasibility study to be examined by the Ministry of Power Industry shall include： the technical， economic and commercial basis for a power construction project； whether or not the project funding and main construction conditions are practicable； the economic evaluation of the project； whether or not the loan repayment capability and responsibilities are workable； the technical standard of the equipment and the supply capability； the project's forecast electricity price； comparison and overall analysis of the project's key elements； and the scientific nature， rationality and feasibility of each element of the project.

　　The points in the contract to be examined by the Ministry of Power Industry shall include： whether or not it is in accord with the relevant laws and regulations； whether or not it is in accord with contents of the feasibility study and requirements stipulated in the approved documents； whether or not it is in accord with the principles of equal and mutual benefit， joint enjoyment of profit， joint bearing of risk and reciprocal rights and obligations； and whether or not the necessary clauses are detailed，

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