查流程将会禁止交易交割，或者只有当各方当事人均接
受特定“减损条件”的条件下才允许交易交割的风险；
中国融资来源将无法提供买方完成交易所需融资的风
险；购置或投资协议条款无法对中国方当事人强制执
行的风险。
上述风险的性质如何，怎样的最佳策略能够成功应对
这些风险？
中国政府出境审批: 风险性质
中国对外投资一般会受到三个中国政府机构的审查。
国家发展改革委员会（NDRC）要求投资者进行“登记
备案”，并获得“登记备案通知”，或对于一小部分敏感
交易，开展“核实和审批”。商务部（MOFCOM）要求投
资者必须持有“海外投资证明”。中国国家外汇管理局
(SAFE）规定，为外国投资项目进行的人民币兑换应予
以登记。
There are four key risks presented by Chinese bidders for
investments or acquisitions in the United States that are
absent from similar transactions by U.S. bidders: the risk
that Chinese authorities will not approve the export of
capital required for the buyer to close the transaction; the
risk that the U.S. government, through the national security
review process administered by the Committee on Foreign
Investment in the United States (CFIUS), will prohibit the
transaction from closing, or will permit it to close only if the
parties accept certain “mitigation” conditions; the risk that
Chinese financing sources will fail to provide the financing
required for the buyer to close the transaction; and the risk
that the terms of the acquisition or investment agreement
will not be enforceable against the Chinese party in China.
What is the nature of these risks and what are the most
successful strategies for addressing them?
CHINESE GOVERNMENT OUTBOUND
APPROVALS: NATURE OF THE RISK
Chinese outbound investments are generally subject to
review by three Chinese government bodies. The National
Development and Reform Commission (NDRC) requires
investors to make a “record filing” and obtain a “record
filing notice” or, for a narrow set of sensitive transactions,
to undergo “verification and approval.” The Ministry of
Commerce (MOFCOM) requires investors to obtain an
“overseas investment certificate.” The State Administration
of Foreign Exchange (SAFE) requires that the exchange of
renminbi for foreign investment projects be registered.
The published regulations provide for an expedited and,
for the most part, limited review process. As of early 2016,
many Chinese investors and their counsel considered the
process predictable and low-risk.
However, the reality has proven different for many
transactions. Through the end of 2016 and into 2017,
in response to falling foreign currency reserves, the
Chinese government used the lever of the approval
requirements to limit outbound investment. Market
participants came to expect that NDRC’s review
would take six weeks or more, notwithstanding a
regulatory deadlin