International Practice

# India-China Cross-Border
Legal Advisory

China

## Comprehensive Legal Counsel for the Chinese Market

China is India's second-largest trading partner globally, with bilateral trade exceeding USD 136 billion annually across sectors including electronics, pharmaceuticals, industrial machinery, chemicals, textiles, and renewable energy equipment. Despite geopolitical complexities, the commercial relationship between India and China continues to be driven by deep supply chain interdependencies, growing consumer markets, and complementary industrial capabilities. Hundreds of Indian information technology, pharmaceutical, and manufacturing companies maintain operations in mainland China, while Chinese investment in Indian infrastructure, technology, and manufacturing sectors has expanded significantly over the past decade.

ESB Global Law Advisory, based in Mumbai, provides specialised cross-border legal services for Indian businesses entering, operating in, or expanding their presence in the Chinese market. Our practice combines Indian legal expertise with a thorough understanding of Chinese corporate, commercial, and regulatory law to deliver practical counsel that addresses the unique challenges of the India-China business corridor.

### WFOE & Joint Venture Formation

Establishing a legal entity in China is essential for Indian businesses seeking a direct market presence. The Wholly Foreign-Owned Enterprise (WFOE) is the most widely used structure, offering full foreign ownership and operational control. Under the Foreign Investment Law, which replaced the earlier trio of foreign investment statutes from January 2020, WFOEs are established through registration with the State Administration for Market Regulation (SAMR) and filing with the Ministry of Commerce (MOFCOM) via the National Enterprise Credit Information Publicity System. The Negative List for Foreign Investment Access determines which sectors are open, restricted, or prohibited for foreign participation. Indian companies must select an appropriate business scope, satisfy minimum registered capital requirements where applicable, secure a compliant registered address, and complete post-incorporation tax and customs registrations.

For sectors on the restricted list or where local market knowledge is critical, joint ventures with Chinese partners remain a viable option. We advise on structuring joint venture agreements that address equity splits, board composition, management control, profit distribution, technology contribution valuations, deadlock resolution mechanisms, and exit strategies. Our guidance also extends to partnership enterprises, representative offices for non-trading activities, and Variable Interest Entity (VIE) structures used in sectors where direct foreign ownership is prohibited.

### Technology Transfer & Licensing Regulations

Technology transfer between India and China is governed by the Foreign Investment Law and the Technology Import and Export Regulations (TIER). The 2019 amendments to TIER removed several provisions that had previously disadvantaged foreign technology licensors, including mandatory indemnification requirements and restrictions on the licensor's right to improvements made by the licensee. Despite these reforms, Indian companies must exercise careful attention when structuring technology licensing agreements for the Chinese market. The Catalogue of Technologies Prohibited or Restricted from Import requires prior government approval for transfers involving listed technologies. Export controls under both Indian regulations (SCOMET list administered by DGFT) and Chinese export control laws must be simultaneously observed.

ESB Global structures technology licensing, technical assistance, and know-how transfer agreements that clearly delineate the scope of licensed rights, confidentiality obligations, improvement ownership, sublicensing restrictions, royalty structures, and termination consequences. We also advise on compliance with data localisation requirements under China's Personal Information Protection Law (PIPL) and Data Security Law where technology transfers involve personal or important data.

### Intellectual Property Protection with CNIPA

China's intellectual property system operates on a strict first-to-file basis, making proactive registration critical for Indian businesses. The China National Intellectual Property Administration (CNIPA) handles patents, trademarks, and integrated circuit layout designs. Patent applications can be filed directly with CNIPA or through the Patent Cooperation Treaty (PCT) route, with India being a PCT member state. Utility model patents, unique to the Chinese system, provide a faster and less expensive form of protection for incremental innovations with a ten-year term. Trademarks should be registered not only in English and transliterated forms but also in Chinese characters to prevent local squatting, a common risk in the Chinese market.

Enforcement of IP rights in China can be pursued through multiple channels. Administrative enforcement through local branches of the State Administration for Market Regulation (SAMR) offers a relatively fast and cost-effective route for trademark infringement and counterfeiting matters. Customs recordal with the General Administration of Customs enables border seizures of infringing goods. Judicial enforcement through specialised IP courts in Beijing, Shanghai, and Guangzhou, as well as IP tribunals in other major cities, provides remedies including injunctions, damages, and evidence preservation orders. ESB Global assists Indian businesses with filing strategies, opposition and cancellation proceedings, customs recordal, and litigation in Chinese IP courts.

### Bilateral Trade Compliance & E-Commerce Regulations

India-China trade is subject to a complex web of customs, tariff, and regulatory requirements. Indian exporters must comply with China's General Administration of Customs regulations, product certification requirements (including the China Compulsory Certification or CCC mark for listed products), and sector-specific standards administered by the Standardization Administration of China (SAC). Anti-dumping and countervailing duty investigations have been an ongoing feature of India-China trade relations, with both countries maintaining active trade remedy regimes. Sanctions and export control compliance has taken on increased importance, with Indian businesses needing to navigate both Indian DGFT regulations and China's Unreliable Entity List and export control regime.

For Indian companies seeking to reach Chinese consumers, China's e-commerce regulations present both opportunity and complexity. The E-Commerce Law, effective from January 2019, governs platform operators, in-platform business operators, and cross-border e-commerce. Cross-border e-commerce pilot zones offer streamlined customs clearance and favourable tax treatment for qualifying imports. We advise Indian businesses on market entry through platforms such as Tmall Global and JD Worldwide, cross-border e-commerce registration requirements, consumer protection obligations, and compliance with advertising regulations administered by the State Administration for Market Regulation.

### CIETAC Arbitration & Dispute Resolution

The China International Economic and Trade Arbitration Commission (CIETAC), established in 1956, is China's premier international arbitration institution and one of the busiest in the world. CIETAC administers arbitrations under its own rules at hearing centres in Beijing, Shanghai, Shenzhen, and other cities, as well as in Hong Kong through CIETAC Hong Kong. Both India and China are signatories to the New York Convention, ensuring mutual enforceability of arbitral awards. For India-China disputes, parties frequently select CIETAC, the Singapore International Arbitration Centre (SIAC), or the Hong Kong International Arbitration Centre (HKIAC) as the administering institution. The choice of arbitration seat is critical, as Chinese courts have occasionally been reluctant to enforce awards that do not comply with specific procedural requirements.

ESB Global advises on the drafting of arbitration and dispute resolution clauses in India-China contracts, ensuring enforceability in both jurisdictions. We guide clients on seat selection, institutional rules comparison, arbitrator appointments, interim measures, document production, and post-award enforcement proceedings. For matters that may involve Chinese court proceedings, we coordinate with qualified Chinese litigation counsel to protect our clients' interests in proceedings before the People's Courts.

### Our China Services Include

- WFOE incorporation and SAMR/MOFCOM registration
- Joint venture structuring, negotiation, and documentation
- Foreign Investment Law compliance and Negative List advisory
- Technology transfer and licensing agreement drafting
- Patent, trademark, and design registration with CNIPA
- IP enforcement through administrative, customs, and judicial channels
- Cross-border e-commerce market entry and platform compliance
- India-China DTAA planning and transfer pricing documentation
- Export control and trade sanctions compliance
- CIETAC, SIAC, and HKIAC arbitration representation
- Data privacy compliance under PIPL and Data Security Law
- Anti-dumping and trade remedy advisory
- Commercial contract drafting under Chinese law
- VIE structuring for restricted sector investments

FAQ

## Frequently Asked Questions

### How can an Indian company establish a WFOE in China?

A Wholly Foreign-Owned Enterprise (WFOE) is the most common structure for Indian businesses seeking full operational control in China. Under the Foreign Investment Law effective from January 2020, establishment requires selecting an approved business scope, obtaining pre-approval from the Ministry of Commerce (MOFCOM) or its local counterpart, registering with the State Administration for Market Regulation (SAMR), opening a Chinese bank account for registered capital injection, and completing tax and customs registrations. The Negative List for Foreign Investment determines whether the intended business activity is permitted, restricted, or prohibited for foreign investors. ESB Global assists Indian companies through each stage, coordinating with Chinese authorities and local counsel to ensure compliance with capital requirements, registered address obligations, and post-incorporation filings.

### What intellectual property protections are available for Indian businesses in China?

China operates a first-to-file IP system, making early registration essential. Patents, trademarks, and designs are registered through the China National Intellectual Property Administration (CNIPA). India's membership in the Patent Cooperation Treaty (PCT) allows Indian applicants to file international patent applications designating China. Trademarks should be filed under the Nice Classification system and, importantly, also registered in Chinese characters to prevent local squatting. The Chinese Anti-Unfair Competition Law provides additional protection against trade secret misappropriation. Enforcement options include administrative action through local Market Supervision Administrations, customs recordal for border seizures, and litigation in specialised IP courts established in Beijing, Shanghai, and Guangzhou. ESB Global advises Indian businesses on comprehensive IP strategies covering registration, monitoring, and enforcement in the Chinese market.

### How does the India-China DTAA affect taxation of cross-border transactions?

The India-China Double Taxation Avoidance Agreement provides relief from double taxation on income earned across both jurisdictions. Under the DTAA, dividends are taxed at a maximum withholding rate of 10%, interest at 10%, and royalties and fees for technical services at 10%. Permanent establishment provisions define the threshold for taxable presence in China, with a fixed place PE triggered after a specified duration of business activities. Chinese corporate income tax is levied at a standard rate of 25%, with preferential rates available for qualifying high-tech enterprises (15%) and small low-profit enterprises. Indian businesses must carefully manage PE exposure, maintain compliant transfer pricing documentation under Chinese rules, and coordinate their India and China tax filings to claim available treaty benefits. ESB Global provides end-to-end tax structuring and DTAA optimisation for India-China operations.

### What are the key regulations governing technology transfer to China?

Technology transfer to China is governed by the Foreign Investment Law and the Technology Import and Export Regulations. Following amendments in 2019, China removed several provisions that previously imposed mandatory conditions on foreign licensors, including requirements to guarantee the technology's fitness for purpose and restrictions on post-contract use of improvements. However, Indian companies should still exercise caution regarding scope of licence grants, confidentiality obligations, and the treatment of improvements and derivative works. Technology transfers involving items on the Catalogue of Technologies Prohibited or Restricted from Import must obtain prior approval from MOFCOM. Export control compliance under both Indian and Chinese regulations must also be observed. ESB Global structures technology licensing and transfer agreements that protect the licensor's interests while meeting Chinese regulatory requirements.

### How are commercial disputes between Indian and Chinese parties resolved?

Commercial disputes between Indian and Chinese parties are most commonly resolved through international arbitration, as both countries are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The China International Economic and Trade Arbitration Commission (CIETAC) is China's leading arbitration institution and is widely used in India-China contracts. Other frequently chosen venues include the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), and the ICC International Court of Arbitration. Selecting a neutral arbitration seat such as Singapore or Hong Kong is often advisable to ensure enforceability. Chinese court litigation is generally less favourable for foreign parties due to language barriers, procedural complexity, and challenges in enforcing foreign judgments. ESB Global advises on dispute resolution clause drafting, arbitration strategy, and cross-border enforcement of awards.

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## Other International Jurisdictions

We also provide cross-border legal services in these jurisdictions.

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### United Kingdom

Corporate structuring, immigration, commercial disputes, and post-Brexit trade compliance.

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### Germany

GmbH formation, EU compliance, employment law, IP protection, and M&A advisory.

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### Japan

KK formation, CEPA benefits, technology licensing, IP registration, and JCAA arbitration.

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### South Korea

Corporate establishment, trade agreements, IP protection, and investment compliance.

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### UAE

Free zone company formation, trade licensing, dispute resolution, and DIFC advisory.

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### USA

LLC and corporation formation, FDA compliance, immigration, and commercial litigation.

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### Sri Lanka

BOI approvals, investment treaties, commercial contracts, and bilateral trade advisory.

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## Expert India-China
Legal Counsel

Navigate the Chinese market with confidence. Strategic legal counsel from Mumbai for cross-border success.

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