From 13 to 17 October 2020, the 22nd Session of the Standing Committee of the 13th National People’s Congress (“NPC”) deliberated on the third review draft (草案三次审议稿) of China’s Export Control Law (“ECL”) before its final passage into law on 17 October 2020. President Xi Jinping issued Presidential Order 58 on October 17 which provides that the new ECL will come into force on 1 December 1, 2020.
This is the first comprehensive and consolidated export control law in China. Prior to the law’s enactment, export controls were imposed via a series of separate administrative regulations controlling dual-use, military items, nuclear, missile, chemical and biological items, and related technologies, etc. To implement the ECL, existing administrative regulations on export controls may need to be further revised.
The ECL contains 5 chapters and 49 articles, which include rules on export control policies, control lists, control measures, and legal liabilities for non-compliance. The ECL is similar to the second review draft (see our previous post here), though it does depart in a few aspects. Some additions include:
- Rules specifying that a controlled item would also include the item’s corresponding data, such as technical information.
- Under special circumstances, export operators may apply to authorities so that they may transact with blacklisted importers and end users on the ECL’s control list. Importers and end-users listed on the control list may also apply to authorities for removal should the circumstances that led to their listing no longer apply.
- Export control authorities will issue industry-specific guidelines to guide export operators in the establishment and improvement of their internal export control compliance systems and operational effectiveness.
- Criminal liability (rather than solely administrative liability) may apply to scenarios whereby prohibited or unlicensed items were exported. These actions will be investigated in accordance with criminal laws should they constitute a crime.
- The new ECL also stipulates that should any country or region abuse export control measures to endanger the national security and interests of the PRC, then the PRC may, based on actual conditions, take reciprocal measures against that country or region.
Baker McKenzie has prepared an English-language version of the Export Control Law, and it can be requested from the author at [email protected].