一
《中华人民共和国国际海运条例》（以下简称《条例》），于2002年1月1日起施行。适用于进出我国港口的国际海运经营活动以及与国际海运相关的辅助性经营活动。所谓与国际海运相关的辅助性经营活动，包括国际船舶代理、国际船舶管理、国际海运货物装卸、国际海运货物仓储、国际海运集装箱站和堆场等业务。《条例》共7章61条，为规范国际海运活动，保护公平竞争，维护市场秩序和国际海运当事人的合法权益，提供了切实的法律保障。交通部根据《条例》，制定了《中华人民共和国国际海运条例实施细则》（以下简称《细则》），共5章70条，自2003年3月1日起施行。
制定《条例》的法律依据之一，是1993年7月1日起生效的《中华人民共和国海商法》。该法第6条规定：“海上运输由国务院交通主管部门统一管理，具体办法由国务院交通主管部门制定，报国务院批准后施行。”
《条例》是行政法规，规范国家在管理国际海运活动中产生的纵向行政法律关系，不涉及市场主体之间在经营活动中产生的横向民事法律关系，属于公海商法（public maritime law）的范畴。就其具体内容而言，《条例》反映了中国政府对国际海运业放松管制与规范管理的统一的政策导向，体现了我国在加入WTO谈判中所作出的承诺，建立了在市场经济条件下管理国际海运活动的一系列制度，明确了对危害国际海运市场公平竞争的行为进行调查与处理的规定，制定了对各种违反《条例》行为的罚则。《条例》规定，国务院交通主管部门和有关的地方人民政府交通主管部门依照本条例规定，对国际海运经营活动及与国际海运相关的辅助性经营活动实施监督管理。《条例》明确，任何国家或者地区对我国国际海上运输经营者、船舶或者船员采取歧视性的禁止、限制或者其他类似措施的，我国政府根据对等原则采取相应措施。《条例》的诞生是我国应对加入WTO的重要举措，改变了长期以来我国有关国际海运业管理的规章制度不全、层次不高、权威不够的状况，标志着国家对国际海运业的管理走上了法制轨道。《条例》是一部放松管制与规范管理融为一体的法规，必将对我国国际海运业的进一步健康发展产生深远的影响。
二
我国是一个重信义、守信用、负责任的大国。在与众多国家进行“入世”谈判时先后做出了一系列有关准入我国国际海运市场的承诺。所有这些承诺，现已转化为《条例》第4章“外商投资经营国际海上运输及其辅助性业务的特别规定”。该特别规定的主要内容是：经国务院交通主管部门批准，外商可以依法投资设立中外合资、合作企业，经营与国际海运相关的辅助性业务；经营国际船舶运输、国际船舶代理业务的，企业中外商的出资比例不得超过49%，中外合作企业中外商的投资比例比照适用；经国务院交通主管部门批准，外商可以依法投资设立三资企业（合资、合作及独资企业），为其拥有或者经营的船舶提供承揽货物、代签提单、代结运费、代签服务合同等4项日常业务服务，未在我国境内投资设立三资企业的，上述4项业务必须委托我国的国际船舶代理企业办理；外国船公司以及外国海运辅助企业，经国务院交通主管部门批准，可以 依法在我国境内设立常驻代表机构，但不得从事经营活动。
从上述规定可以清楚地看出，作为一个发展中国家，我国国际海运业的对外开放，无论从广度还是深度上讲，确实已经取得了很大进展，在有些方面还处于世界先进水平。当然，这并不是说外商进入我国国际海运市场已经没有任何限制，例如：外商尚不能以独资形式在我国经营与国际海运相关的辅助性业务，不能在经营国际船舶运输和国际船舶代理业务的合资、合作企业中控股。
《条例》允许外商在如此广泛的领域进入我国国际海运市场，是以整个国家在二十多年改革开放过程中综合国力明显提高为基础的，是我国国际海运业有信心、有能力应对“入世”后面临的挑战与竞争的表现。事实上第4章规定的事项，有相当部分已经成为现实。例如，截止2001年底，境外航运企业在我国大陆的常驻代表机构已有700多家；中外合资船舶运输企业120多家，外商独资船务公司和集装箱运输服务公司及其分支机构110多家。目前在从我国港口每月开出的近洋航班和远洋航班中，境外航运公司分别占47.5%和70%。中国承运人的市场份额已从20世纪80年代末的60%以上降到目前的40%，国际集装箱运输市场份额从20世纪90年代初的50%降到目前约30%。尽管如此，从整体上讲，我国国际海运业的发展并未因此受到影响，而是恰恰相反，无论是船队规模与经营，还是人员素质与管理，都取得了长足的进步。世界经济一体化趋势的加强，必然首先在海运业上反映出来，有贸易必有运输，海运业本身就是国际性的。我国的国际海运市场对外开放，外国的国际海运市场允许我国国际海运企业进入，你中有我，我中有你。正是在这种开放、竞争、共存的环境里，我国的国际海运企业与世界一流的外国海运企业一起竞争、较量、合作，在市场经济大潮中学习、锻炼、壮大。时至今日，我国已经成为对国际海运界有重要影响的国家。所以，我们完全有理由相信，已经经历了二十多年改革开放洗礼的中国国际海运业，一定会在今后进一步对外开放的进程中发展得更快，做得更好。
三
市场经济是法制经济，国家通过制定“游戏规则”，即法律法规等维持市场秩序，保证市场主体之间的公平竞争。随着我国水路运输业初步实现由计划经济向市场经济的转变，国家交通主管部门理应加快职能转变，减少直接行政干预和限制，更多地让市场发挥作用，主要依靠经济、法律等间接手段进行管理，让企业根据市场规律自主决策、自负赢亏。为此，《条例》大幅度减少了行政审批事项，除国际船舶运输业务实行许可证制度外，无船承运、国际班轮运输、国际船舶代理及国际船舶管理等业务，均实行登记制。《条例》对前述业务的登记程序、准入条件及审核时间等作了专门规定。为了使登记制更具可操作性，《细则》明确了登记制的具体做法。这与长期以来我国对国际海运业以审批为特征的管理模式相比，无疑是向前迈进了一大步，反映了国家对国际海运业逐步放松管制的政策导向，有利于国家交通主管部门职能的转变和管理行为的规范，实现了与国际通行的管理模式的接轨。
《条例》一方面在许多事项上放松了管制，另一方面也在需要规范管理的地方作出规定。《条例》允许交通部在审核国际船舶运输业务的申请时，考虑国家关于海运业发展的政策和国际海运市场的竞争状况。换言之，就国际船舶运输业务而言，并不是只要申请人符合《条例》第5条明示的4项条件就必须予以许可，交通部具有国际海运市场的宏观调控权。与此同时，为了约束交通部行使该项宏观调控权，《细则》第4条规定：“交通部应当在其政府网站和其他适当媒体上及时公布国际海运市场竞争状况和国家关于国际海上运输业发展的政策。上述状况和政策未经公布，不得作为拒绝申请的理由。”这一限制性规定，要求国家交通主管部门谨慎行使宏观调控权，体现了依法行政的理念。
随着集装箱运输的发展，无船承运人（nvocc）便在国际海运领域有了一席之地。就横向民事法律关系而言，法律规范海上货物运输合同当事人的权利义务关系，即承运人与托运人、收货人之间的权利义务关系。法律在认定谁是承运人时并不介意其是否“有船”，换言之，只要是与托运人订立运输合同的，就是承运人。然而，从保护广大货主的利益出发，国际海运业务的经营者是否“有船”，就不能说是无关紧要的了。从一定的意义上说，“有船承运人”比“无船承运人”可靠，当发生货物损害赔偿或海运欺诈行为时，在通常情况下追究“有船承运人”的责任可能更方便，因为船本身就是一种担保。所以，美国在1998年《航运改革法》（Shipping Reform Act）中对无船承运人的性质、经营无船承运业务的许可及担保等事项一一作出规定，并由联邦海事委员会（FMC）严格执行。从管理效果看，美国法律对无船承运人的限制性规定，确实起到了有效保护货主合法权益，明显减少海运欺诈的作用。那么，我国是否有必要参照美国有关无船承运人的法律规定，对经营无船承运业务作出相应的规定呢？答案是肯定的。众所周知，在《条例》出台前，我国对无船承运业务的管理基本处于“自流”状态，无船承运人卷了货主支付的运费一走了之的时有所闻，无力承担承运人责任的并不鲜见。如何保护广大货主的利益，规范无船承运业务，成为我国国际海运市场的突出问题。在这种背景下，参考美国航运改革法的有关规定，结合我国具体国情，《条例》明确了无船承运业务的概念，规定在中国境内经营无船承运业务应当在中国境内依法设立企业法人，办理提单登记，并交纳80万元人民币保证金，用于支付因其不履行承运人义务或者履行义务不当所产生的债务以及支付罚款。
《条例》规定了适用于国际班轮运输业务的运价备案制度。早在1997年，交通部就授权上海航运交易所，在涉及上海、浙江和江苏口岸的国际集装箱班轮航线上，试行运价报备制度。几年来，几十家中外船公司按规定向上海航运交易所报备了各自的集装箱运价，国家交通主管部门为规范国际海运市场秩序作了有益尝试，积累了经验。为了稳妥地在全国实施适用于国际班轮运输业务的运价备案制度，《细则》第68条明确，运价备案的具体办法，由交通部另行规定。这就意味着，由交通部制定的运价备案的具体办法颁布之日，才是运价备案制度在全国实施之时。
四
美国和欧盟都在各自的相关法律中专门就违反公平竞争的行为进行调查与处理作了明确规定，具有很强的针对性和可操作性。《条例》第5章参考外国的有关法律与做法，根据我国的具体国情，对违反公平竞争的行为进行调查与处理作出规定，内容涉及在什么情况下可以进行调查，如何进行调查，调查持续的期限及调查人员的构成与权限等。《条例》第40条规定，如果调查确认被调查人对公平竞争造成损害的，调查机关可以采取责令修改有关协议、限制班轮航班数量、中止运价本或者暂停受理运价备案、责令定期报送有关资料等禁止性、限制性措施。调查机关在作出采取禁止性、限制性措施的决定前，应当告之当事人有要求举行听证的权利；当事人要求听证时，应当举行听证。此外，《条例》第6章还明确了对违反其各项规定应给予的具体处罚，包括责令停止经营、撤销经营资格、拒绝进港、没收违法所得、处以罚款，直到追究当事人的刑事责任等。《细则》就《条例》第5章“调查与处理”和第6章“法律责任”作了进一步的程序性规定，以利于《条例》在实践中得到切实的贯彻执行。交通部于2002年12月30日发布第9号公告，宣布根据《条例》第35条规定，应中国对外贸易经济合作企业协会的请求，对国际班轮公司向我国货主和托运人收取码头作业费（Terminal Handling Charger，THC）是否存在违法问题开展调查。调查内容涉及：有关国际班轮公会或国际班轮公司之间订立的涉及THC的协议，是否损害了公平竞争；国际班轮公司在向我国货主和托运人收取THC的活动中，是否存在以歧视性价格或者其他限制性条件给交易对方造成了损害；是否存在其他损害交易对方或者国际海上运输市场秩序的违法行为。有关收取THC的调查，是《条例》生效以来第一个因当事人请求而进行的调查，已引起国内外有关各方的关注，这从一个侧面说明了《条例》对依法管理我国国际海运业的重要性。
《条例》是我国第一部对国际海运经营活动及与之相关的辅助性经营活动进行行政管理的法规，反映了目前我国国际海运市场的发展阶段和管理水平，在国家的航运法律体系中占有重要地位。但是，从发展的观点看，《条例》又是一部“过渡”的法规。随着我国市场经济与改革开放的不断发展，政府驾驭市场的能力与国家法制水平的不断提高，作为一个航运大国，我们应当尽快着手制定一部适用于水路运输业的行政管理法律，使国家对包括内河、沿海及国际海运的整个水路运输业的方针政策和管理手段等建立在完善的法制基础上。
1 於世成，上海海运学院院长、教授
2 王瑜，英士律师事务所上海办事处
Integration of Deregulation and Regulatory Administration
Comments on the Regulations of the People’s Republic of China
on International Maritime Transportation
YU Shi Cheng WANG Yu
INTRODUCTION
The Regulations of the People’s Republic of China on International Maritime Transportation (the “Regulations”) adopted at the 49th executive meeting of the State Council, came into force on 1 January 2002. The Regulations apply to international shipping business between PRC ports and the auxiliary business of the international shipping, which includes the services of international shipping agency, international ship management, loading and unloading, storage and warehousing of international shipments and international maritime container station and container yard, etc. The aim of the Regulations, which consist of 7 chapters and 61 articles, is to provide concrete legal safeguard for administration of international shipping business, maintenance of fair competition, market order and protection of the legitimate rights and interests of the parties in international shipping business. In accordance with the Regulations, the Ministry of the Communications (the “MOC”) has formulated The Implementing Rules of the Regulations of the People’s Republic of China on International Maritime Transportation (the “Rules”), which are composed of 5 chapters and 70 Articles, and have been in effect since 1 March 2003.
One of the legal bases of the Regulations is the Chinese Maritime Code 1993 (the “CMC”), which has been in force since 1 July 1993. Article 6 of CMC stipulates: -
All matters pertaining to maritime transport shall be administered by the competent authorities of transport and communications under the State Council. The specific measures governing such administration shall be worked out by such authorities and implemented after being submitted to and approved by the State Council
The Regulations, by nature, are administrative rules regulating the administrative legal relationship arising from the governmental administration of international shipping business rather than the civil legal relationship between market entities arising from business activities. The Regulations therefore shall be categorised as public maritime law. The Regulations demonstrate the Chinese government’s policy of integration of deregulation and regulatory administration in the international shipping business; reflect the commitments made by the Chinese government during the negotiations for China’s entry into WTO; establish a series of systems in the administration of the international shipping business in the market economy; lay down rules in respect of investigation into and disciplinary measures against conducts detrimental to fair competition in the international shipping market; and set out punishment rules in respect of violations of the Regulations. In accordance with the Regulations the competent authorities of the State Council and those in local municipal governments shall exercise supervisory and administrative functions on international shipping business and its auxiliary business in pursuance of the provisions of the Regulations. The Regulations have also made it clear that where any country or region adopts any discriminatory prohibition, restriction or other similar measures against China’s international shipping operators, ships or crew, the Chinese government shall take appropriate countermeasures on reciprocal basis The enactment of the Regulations is an important move adopted by the Chinese government subsequent to her entry into WTO. It has changed the longtime situation in which China’s international shipping regulations and rules were inadequate, low-ranking and less authoritative; and this marked a step forward in the legal administration of international shipping business. The Regulations are a piece of legislation which integrates deregulation and regulatory administration and it is bound to have a far-reaching impact on further and healthy development of the Chinese international shipping industry.
OPENNING OF THE CHINESE SHIPPING MARKET
China is a nation that attaches much importance to faith, honour, commitment and responsibility. During the negotiations with various countries for its WTO entry, the Chinese government made a series of commitments in relation to access to China’s international shipping market; and all these commitments have now been transformed into the “Special Provisions on Investment in and Operation of International Maritime Transportation and Auxiliary Business Relating thereto by Foreign Investors” in Chapter IV of the Regulations. In accordance with the provisions of this chapter, foreign investors could, upon approval of the competent authorities of the State Council, establish Chinese-foreign equity joint ventures or contractual joint ventures to engage in auxiliary business of international shipping. For enterprises engaged in international shipping services and international shipping agency services, foreign investment, if any, shall not exceed 49% of the total investment and such investment proportion is also applicable to Chinese-foreign contractual joint ventures. Also, upon approval of the competent authorities of the State Council, foreign investors could invest in China to establish Chinese-foreign equity joint ventures, contractual joint ventures or wholly foreign owned enterprises to provide such routine services as freight soliciting, bill of lading issuance, freight settlement and service contract for vessels owned or operated by the foreign investors. For those foreign companies that have not established such enterprises in China, a Chinese international shipping agency has to be appointed to undertake the above-mentioned routine services. Foreign shipping companies and auxiliary business service providers could, upon approval of the competent authorities of the State Council, set up representative offices in China, but such representative offices may not engage in operational business activities.
It can be seen that as a developing country, China has made significant progress in many aspects in opening her shipping market to the rest of the world, and in some aspects it even takes a leading role in the global shipping industry. Of course, this does not necessarily mean that there is no limitation whatsoever for foreign investors to enter China’s international shipping market. For instance, foreign investors are as yet not allowed to operate auxiliary businesses in China in the form of wholly foreign owned enterprises, nor are they allowed to hold controlling shares in Chinese-foreign equity joint ventures or contractual joint ventures that are engaged in international shipping business or international ship agency business.
Permission by the Regulations to foreign investors to enter various sectors of the Chinese international shipping market is based on the significant improvements of china’s overall strength gained in the past two decades of reform and opening. This indicates that China has the confidence and the capability in facing challenges and competition after her entry into WTO. As a matter of fact, the substantial part of the provisions in Chapter IV has already become a reality. For example, by the end of 2001, the Chinese mainland already had over 700 representative offices set up by overseas shipping companies, over 120 Chinese-foreign joint shipping companies and more than 110 wholly foreign owned shipping service companies, container liner service companies and their branches. Currently, among the vessels sailing each month from Chinese ports, 70% of the vessels on the Atlantic route and 47.5% of the vessels on the Far East route are owned or operated by overseas shipping companies. The shares of the Chinese carriers in the market have decreased from over 60% at the end of 1980s to under 40% at present; their shares in the international container shipping market have decreased from 50% at the beginning of 1990s to approximately 30% at present Notwithstanding such decreases, the development of the Chinese international shipping industry as a whole has not been jeopardised. On the contrary, great progress has been achieved not only in fleet size and operation, but also in human resources and management skills. The economic globalisation will be reflected first in shipping. Where there is trading, there will be shipping, and shipping itself is international. While China opens her market to the rest of the world, Chinese shipping companies are also allowed to enter foreign markets, each is inside of the other. In such an open, competitive and co-existent environment, Chinese domestic shipping companies have developed and China has become one of the most influential countries in the international shipping community. We therefore have reasons to believe that China’s international shipping, having gone through more than two decades of reform and opening, is bound to achieve more and better developments in the process of further opening in the future.
DEREGULATION AND REGULATORY ADMINISTRATION
It is law that rules the market economy, and a state in the market economy makes “rules of the game” to maintain market order and ensure fair competition. Whilst the Chinese water transportation industry is transforming from a planned economy to a market economy, the competent authorities of the government shall speed up the transfer of their functions, minimise direct administrative interference and restriction, bring the market into play, exercise administration by economic, legal and other indirect forces, provide more autonomy for the enterprises in the market. For this purpose, the Regulations have substantially cut down the items that require government approval. Under the Regulations, except for international shipping business to which a permit system is still applicable, NVOCC business, international liner services, international shipping agency services and international ship management services are subject only to registration Detailed provisions can be found in the Regulations in relation to registration procedures, conditions for entry and duration for review of the above-mentioned businesses. To ensure that the registration system is operative, the Rules specify in detail the mechanism of the system. Compared to the previous management model in the Chinese shipping industry characterised by an application-and-approval system, the registration system now is obviously a huge step forward reflecting the government’s policy of gradual deregulation in the international shipping industry. Such a system will surely help achieve the transformation of government functions and formalisation of government administration and will therefore fit into the administration model generally adopted in the world.
The Regulations on the one hand have eased the government control in many aspects, but on the other contain provisions on where regulatory administration is necessary. The Regulations allow the MOC, when examining and approving applications for international shipping business, to take into account the nation’s policies for development of its shipping industry as well as the competition conditions in the international shipping market. In other words, as far as international shipping business is concerned, an applicant who meets the four requirements contained in Article 5 of the Regulations will not automatically be granted the permission to operate; the MOC has the macro-control discretion. At the same time, in order to ensure that the MOC exercises this discretion appropriately, Article 4 of the Rules provides: -
“The Ministry of Communications shall on its government website and other appropriate media publish the competition situations in the international shipping market and the nation’s policies on development of international shipping business in due time. In case that such situations and policies are not published, they cannot be used as the reasons to reject an application.”
This restrictive rule requires the competent authorities to carefully exercise their macro-control discretion, which is in line with the doctrine of administration by law.
With the development of containerised transportation, NVOCC has begun to play its roles in the international shipping community. As far as the civil legal relationship is concerned, the law governs the rights and obligations of the parties to the contracts of carriage of goods by sea, i.e. the rights and obligations among carriers, shippers and consignees. In defining the term “carrier”, the law does not care whether the carrier owns a ship or not. In other words, a party that enters into a contract with a shipper for carriage of goods is a carrier. However, for the sake of protection of cargo owners’ interests, it perhaps matters a great deal whether an international shipping business operator owns a ship or not. To a certain extent, a carrier owning a ship is more reliable than an NVOCC, because when there is a cargo damage claim or a maritime fraud, it may be more convenient to pursue a claim against the carrier owning a ship as the ship itself can be a kind of security. Therefore, in the American Shipping Reform Act 1998, one can find the provisions on the nature of NVOCC, permission for NVOCC business, surety bond, etc. It is also provided that the Federal Maritime Committee (the “FMC”) is empowered to strictly implement the Act. Judging by the managerial results, the introduction of strict provisions in American law in respect of NVOCC did effectively protect cargo interests and help eliminate maritime fraud. The question for us is whether it is necessary for China to, using American experience as an example, formulate similar provisions in respect of NVOCC business? The answer is affirmative. Before the enactment of the Regulations, NVOCC was operating in a market where there were no particulars provisions of law, it was not uncommon that an NVOCC grabbed the freight of the cargo interests and fled away, or simply it had no capability to perform the contractual obligations. How to protect the cargo interests and how to administrate NVOCC business became the pressing tasks of the industry. It was in such circumstances that the Regulations, having taken into account the American Shipping Reform Act 1998 and the Chinese market reality, have defined NVOCC business and provided that one who is to engage in NVOCC business in China must form a corporate entity in China, register bills of lading and provide a deposit of RMB800,000 as the security for the debts which may arise from non-performance or improper performance of NVOCC’s obligations or administrative penalty which may be imposed upon the NVOCC.
The Regulations have also provided for a freight filing system applicable to international liner services. Back in 1997, Shanghai Shipping Exchange, with the authorisation of the MOC, provisionally started to apply a freight filing system to the international liner services in Shanghai, Zhejiang and Jiangsu. During the past few years, many domestic and overseas shipping companies have filed their container freight tariffs with Shanghai Shipping Exchange. This is a very useful experiment and has gained experience in market administration. For a steady application of the freight filing systems to international liner services in the whole nation, Article 68 of the Rules states that the detailed mechanism of the freight filing system shall be worked out by the MOC. Therefore a nationwide freight filing system will be in place once the detailed mechanism is enacted by the MOC.
INVESTIGATION AND FAIR COMPETITION
The laws in both America and EU have specific provisions dealing with investigation and disciplinary measures against violation of fair competition, and such provisions are highly operative. Chapter V of the Regulations, taking into account of the relevant foreign laws and practice as well as the Chinese reality, contains provisions for investigation into violation of fair competition. Those provisions deal with the circumstances when investigation is necessary, how investigation shall be conducted, time limits of the investigation, and constitution and authority of the investigation team. It is provided under Article 40 of the Regulations that if conduct detrimental to fair competition is verified by the investigation, the competent authorities for investigation may take such prohibitive or restrictive measures as compelling amendment of the relevant agreements, restraining the frequency of liner services, suspending the use of freight tariffs or acceptance of freight filing, or demanding regular reporting of relevant information, etc. However, before making the decision to take prohibitive or restrictive measures, the investigation authority shall notify the party concerned of its right to have a hearing and shall hold such a hearing when the party concerned so requires. In addition to this, Chapter 6 of the Regulations also expressly provides for the penalties of violations including termination of operation, cancellation of the operation permit, prohibition of ships from entering PRC ports, confiscation of illegal income, imposing of fines and even criminal charges. The Rules have detailed procedural provisions with respect to Chapter V and VI of the Regulations so as to facilitate practical implementation of the Regulations. On 30 December 2002, the MOC issued Notice No. 9 announcing that at the request of China Foreign Trade Economic and Cooperation Committee, the MOC shall, in accordance with Article 35 of the Regulations, conduct an investigation to determine whether there is a violation of law in the collecting of the Terminal Handling Charges (the “THC”) by international liner companies from Chinese cargo owners and shippers. The investigation will cover these areas: whether the THC agreements relating to the international freight conference or between international liner companies are detrimental to fair competition; whether there is any price discrimination or other restrictive condition causing damage to PRC cargo owners and shippers in collection of THC by international liner companies; whether there is any illegal conduct impairing the trade counterpart or detrimental to the international shipping market order. The investigation in respect of THC is the first one which is conducted at the request of the parties concerned after the enactment of the Regulations and it has attracted the attention of the various parties concerned both at home and abroad. It is also, in a sense, a demonstration of the importance of the Regulations in administration of China’s international shipping industry.
HKSAR, MACAO SAR AND TAIWAN REGION
China is a multi-jurisdiction country imposing a question as to how to legally administer the maritime transportation between the Chinese mainland on the one hand and the Hong Kong Special Administrative Region (the “HKSAR”), Macao Special Administrative Region (the “Macao SAR”) and Taiwan region on the other. In 2001, 1,425,000 TEU were carried by sea and 2,947,000 TEU by river between HKSAR and mainland ports; and 488,238 TEU were carried by sea on “trial direct navigation” between the Taiwan region and the Chinese mainland The routes between the Chinese mainland and the HKSAR, Macao SAR as well as Taiwan region are domestic routes subject to special administration, and such administration is based on Chinese laws and regulations applicable to international shipping. In this aspect, the Regulations specifically provide that the provisions of the Regulations shall be applied mutatis mutandis to the investment in international shipping business and auxiliary business in the Chinese mainland by investors from the HKSAR, Macao SAR as well as Taiwan region In addition to this, it is also provided in the Regulations that, without permission of the competent authorities of the State Council, foreign operators of international shipping business may not be allowed to engage in the shipping business between the Chinese mainland and the HKSAR or Macao SAR, nor the two-way direct sailing or shipping services via a third place between the Chinese mainland and the Taiwan region. The competent authorities of the State Council shall, in accordance with the Regulations, promulgate the administrative rules in respect of the maritime transportation between the Chinese mainland and the HKSAR or Macao SAR, and the maritime transportation between the Chinese mainland and the Taiwan region shall, on the other hand, be governed by the relevant provisions of the State Authorized by the State Council, the MOC has promulgated the Administrative Measures on Shipping across the Taiwan Straits, in accordance with which the maritime transportation across the Taiwan Straits shall, upon approval of the MOC, be operated by the companies which are solely owned by Chinese mainland interests or Taiwan interests and which are duly registered in the Chinese mainland or the Taiwan region, or by the mainland-Taiwanese joint venture companies
CONCLUSION
The Regulations are the first law in China administratively governing the international shipping business and its auxiliary business. It reflects the current development and administrative level of China’s international shipping market and plays an important role in the Chinese shipping legal system. In the long run, however, the Regulations are only a “transitional” law. With the continual development of the market economy and with the further reform and opening, the administrative ability of the government as well as the legal system will be improved. As an important maritime nation, China should, the sooner, the better, enact a comprehensive administrative law so that the national policy and administration on water transportation, including river, coastal and ocean transportation, can be founded on a unified legal basis.
