Technology export administration: the prohibited/restricted technology Catalogue and the Technology Import and Export Regulations

Build a pre-transfer screening gate covering every form of outward transfer: patent assignment, patent licensing, transfer of know-how, technical cooperation, technical services and contribution of technology as capital. For each technology to be transferred, compare it against the entry descriptions and control points in the Catalogue version MOFCOM currently publishes, record a written conclusion of prohibited, restricted or free, and state in that record which Catalogue version and issue date was relied on — the annex to the 2008 Order No. 12 lapsed on 21 Dec 2023 and can no longer be used. Where the technology is military-civil dual-use, Announcement No. 38 of 2020 brings it under the export-control regime, so the dual-use lists and catch-all provisions of the Export Control Law and the Dual-Use Items Regulations must be applied at the same time.

Applies when

Chinese AI companies planning outbound technology licensing, an offshore R&D entity, a joint venture funded by contributed technology, or a transfer of technology assets in an outbound restructuring.

Evidence to retain

• · Technology asset inventory: name, type of right, core control points and the form in which it is embodied
• · Per-technology comparison against the Catalogue entries, recording the conclusion, the entry relied on, the assessor and the date
• · Parallel dual-use determination recording whether the technology also falls under dual-use control
• · Catalogue version check recording which published version was relied on and its issue date
• · Internal approval procedure and approval records for outbound technology transfers

Estimated first-time effort: 15–40 person-days (estimate, not a commitment)

A restricted technology may be contracted for and delivered only after the two-stage permit under the Technology Import and Export Administration Regulations has been completed, and the order of the stages cannot be reversed. Stage one (Arts. 34–36): file a technology export application with MOFCOM, which reviews it together with the science-and-technology authority and decides within 30 working days of receipt; if approved, a letter of intent for a technology export licence is issued, and any required confidentiality review follows national rules. ONLY AFTER OBTAINING THAT LETTER may the applicant enter substantive negotiations and sign the technology export contract — the single line in this regime most often run over by deal tempo. Stage two (Arts. 37–38): after signature, file four documents to apply for the licence itself — the letter of intent, a copy of the technology export contract, an export list of the technical materials, and proof of both parties’ legal status; MOFCOM verifies the contract’s authenticity and decides within 15 working days of receipt; where licensed, the technology export licence is issued and THE CONTRACT TAKES EFFECT ON THE DATE THE LICENCE IS ISSUED. The licence is then used to complete foreign-exchange, banking, tax and customs formalities (Art. 42); a change to the main terms requires the permit to be redone and termination must be filed (Art. 43). Free-export technologies are not a no-op either: the contract must be registered, filing a registration application, a copy of the contract and proof of both parties’ legal status, with the authority registering it and issuing a registration certificate within three working days (Arts. 40–41).

Applies when

Companies transferring restricted technologies, and companies transferring free-export technologies that still need contract registration. Two failures dominate in practice: signing the cooperation agreement or opening code and documentation to an offshore team first and applying for the permit afterwards, by which point the technology has already left the country; and treating the letter of intent as clearance to deliver, overlooking that the contract only takes effect on the date the licence itself is issued.

Deadline: Stage one: decision within 30 working days of receipt of the application; stage two: decision within 15 working days of receipt of the licence-application documents; free-export contract registration: registered within three working days

Evidence to retain

• · Technology export application materials and the letter of intent for a technology export licence
• · The four licence-application documents: letter of intent, copy of the technology export contract, export list of the technical materials, and proof of both parties’ legal status
• · MOFCOM’s acceptance, decision and the original licence
• · Contract clause providing that it takes effect on the date the technology export licence is issued
• · Timeline comparing the delivery of technical materials against the date the licence was issued
• · Configuration evidence for the access restrictions applied to offshore entities while the permit was pending
• · Re-permitting records after a change to the contract’s main terms, and the filing record on termination
• · Contract registration application and technology export contract registration certificate for free-export technologies

Estimated first-time effort: 15–45 person-days (estimate, not a commitment)

Two things at once. First, treat the prohibited class as an absolute bar: Art. 32 of the Regulations says only that “technologies prohibited from export may not be exported” — no exception, no licensing route, no room to act first and regularise later. The technology asset register therefore needs a prohibited-class flag that no business process can route around: a hit ends the transaction rather than scheduling an approval. Second, widen the trigger surface to the actions that count as technology export even with no customs declaration anywhere, because Art. 2 defines technology export as “transferring technology out of the PRC by way of trade, investment or economic and technical cooperation” — the test is the act and the mode of transfer, not any movement of goods: (1) transferring technology to a wholly owned offshore subsidiary or branch — sitting inside one corporate group is not an exemption; (2) contributing technology as capital or equity into a Sino-foreign or offshore joint venture; (3) patent licensing, know-how licensing, and licensing software or models abroad; and (4) technical services, joint development and technical consulting for offshore parties, including handing domestic R&D output to an offshore affiliate to continue developing. All four sit within the three modes Art. 2 enumerates, so each needs a determination gate in the process and a failed determination must block execution. Two further cases are NOT expressly addressed by the Regulations yet carry real risk; treat them as internal risk-control gates rather than stating them as settled statutory triggers: (5) publishing model weights, training methods or core algorithm implementations as open source — whether a public release with no contract and no consideration amounts to a transfer “by way of trade, investment or economic and technical cooperation” under Art. 2 is not addressed in the text, and no official position on it was obtained in this round; and (6) offshore personnel who access technical materials in China and then use them abroad — the Regulations contain no counterpart to the “deemed export” rule of US export controls. Both should still be assessed in writing before release or licensing, with the determination retained and, where material, a query put to the commerce authority.

Applies when

Every Chinese AI company extending technical capability offshore, and especially those with an offshore R&D centre or wholly owned subsidiary, those contributing technology into a joint venture, those licensing models or providing technical services abroad, and teams with open-source release plans. The two cases most often skipped entirely are open-source release and intra-group transfer, precisely because neither normally passes through legal or trade-compliance workflow — intra-group transfer squarely fits the “investment” and “economic and technical cooperation” modes of Art. 2, whereas open-source release is not addressed by the Regulations and has to be gated on the company’s own judgement.

Evidence to retain

• · Prohibited / restricted / free classification field in the technology asset register, with its update history
• · Decision and approval record terminating a transaction after a prohibited-class hit
• · Per-item determination records for technology transferred to offshore subsidiaries and branches
• · Technology-export determination memorandum for technology contributed as capital or equity into a joint venture
• · Inventory of outbound licensing and technical-service contracts with the determination reached for each
• · Pre-release determination record for open-source publication: scope of what is published, assessor, date and conclusion
• · Authorisation and scope records for offshore personnel accessing domestic technical materials

Estimated first-time effort: 10–30 person-days (estimate, not a commitment)

Embed the technology-export determination into outbound deal structuring: how the offshore entity sources its technology, how IP ownership and licensing run between onshore and offshore entities, where R&D output is created and who owns it, and how technology assets move in M&A and restructurings should all be compared against the Catalogue, with permit feasibility assessed, before the transaction documents are finalised. Also monitor the Catalogue and related announcements: it is administered by MOFCOM with MOST and adjusted from time to time, and an adjustment can move an existing arrangement from free to restricted, triggering a fresh determination.

Applies when

Chinese AI companies undertaking a red-chip or VIE restructuring, establishing an offshore R&D centre, or forming a joint venture with an offshore party; and companies with existing cross-border licensing arrangements that need periodic review.

Evidence to retain

• · Technology flow map for the deal structure and a note on the IP ownership arrangements
• · Technology-export compliance memorandum prepared before the transaction documents were finalised
• · Description of the monitoring mechanism for the Catalogue and related announcements, with the monitoring records
• · Re-determination records and remediation plans following a Catalogue adjustment
• · Periodic review records for existing cross-border licensing arrangements

Estimated first-time effort: 10–30 person-days (estimate, not a commitment)