Agriculture has traditionally been restricted for foreign investors in China. The sector is seen as strategically important given the need to ensure food security for China’s population and to maintain employment for China’s large rural population. While the importance of food security remains paramount, there has been a gradual opening of the agriculture sector to foreign investors, particularly in relation to agricultural technology. The seed industry is a key example of this relaxation, which has been significant in the last two years.
In China, rice, corn, wheat, soybeans and cotton are the five staple crops. The majority of China’s seed sellers focus on these seed types. The country is self sufficient in the production of seeds for rice, corn and wheat but not soybeans and cotton. In addition, use of genetically modified crops is an area of growing importance and China cautiously sees it as a means to increase production within the limits of China’s land availability. At the same time seed production is dominated by a few global players. China is striking a balance between protecting its local seed producers and ensuring efficiency in agricultural production as far as possible. Focus has been more and more on efficiency, and seed production should increasingly be open to foreign investors.
Seed Industry Regulations
China regulates all foreign investment into China and the restrictions vary depending on the type of industry. The key Foreign Investment Catalogue used to provide that investment into the seed sector must be through a sino-foreign joint venture that is controlled by Chinese investors. Furthermore, foreign investment in genetically modified seed production and research and development were prohibited.
In addition to the restrictions in the Foreign Investment Catalogue, China introduced a specific security review process for seed production in 2015. In practice, this had been administered by MOFCOM. Ultimately it formed part of MOFCOM’s general responsibility for security review, which already included agriculture as an area of scrutiny. As a result of the 2015 regulations, together with the MOFCOM security review regulations, there was a reasonable likelihood that any major investment into the seed sector would need to go through MOFCOM security review as well as satisfying the requirements of the Catalogue.
A step by step opening
The restrictions on foreign investment into seed production have been gradually relaxed throughout 2018 and 2019. The relaxation culminated in the 2018 version and then the 2019 version of the Foreign Investment Negative List.
The 2018 and 2019 versions of the Negative List now provide that:
- Wholesale of rice wheat and corn: There are no restrictions on the purchase and wholesale of rice, wheat and corn, so that a wholly foreign owned company can now operate without the need for a local partner.
- Production of Seeds (except wheat and corn): There are strict restrictions on production of wheat and corn seeds but fewer restrictions on production of all other seeds. Generally a wholly foreign owned enterprise can produce all seeds except for wheat and corn. There continue to be carve outs for unique seeds which are subject to greater scrutiny but this should not apply to China’s core crops.
- Production of Seeds (wheat and corn): A foreign controlled company (where the foreign shareholder controls no more than 66%) that is established in a Free Trade Zone can produce wheat and corn seeds. Production of wheat and corn seeds in areas outside a Free Trade Zone must be through a Chinese controlled entity.
- Research and Development of Genetically Modified Seeds:A wholly foreign owned company may participate in research and development of genetically modified seeds.
- Production of Genetically Modified Seeds: Production of genetically modified seeds continues to be prohibited for foreign investors.