China’s Stock Connect Goes Live but the Danger of Distress Looms

By Andrew Minear

On November 17, 2014, Shanghai-Hong Kong Stock Connect, known as Stock Connect, went live. Stock Connect is a government-sponsored investment mechanism that aims to radically expand foreign investment in China with a daily quota of $2.2 billion. Before the formation of Stock Connect, companies in China attracted foreign investment through notoriously risky indirect investment structures because China’s Qualified Foreign Institutional Investor program, or QFII, set strict quotas on direct foreign investment into China. By way of comparison, under QFII, foreign direct investment totaled $110 billion over the past 10 years.  Nevertheless, the roll-out of Stock Connect (which is intended to afford foreign investors the opportunity to invest directly in Chinese companies), will do nothing to ameliorate the risk in recovery of the foreign investment in the event of insolvency.

Even if direct foreign investment through Stock Connect is successful in increasing the infusion of foreign capital, direct foreign investment will likely not reach the historical levels of traditional foreign investment in China - indirect foreign investment, which is structured in China in one of two ways.  In the traditional structure used to access foreign capital markets, known as a Variable Interest Entity or VIE, and used by e-commerce giants Alibaba and Baidu, the offshore holding company does not hold a “direct” ownership in the operating subsidiary, but instead the offshore holding company enters into a series of contracts with the operating subsidiary which allow it to exercise control over the operating subsidiary and receive a portion or all of the subsidiary’s profits.

In the increasingly common “pass through” structure, the equity holders or owners of the operating company in China create or acquire an offshore holding company that owns the operating company in China.  The offshore holding company is often domiciled in a permitted domicile for Chinese companies, often the Cayman Islands or British Virgin Islands.  The profits of the operating subsidiary “pass through” the offshore holding company to the indirect foreign investors.

In both the pass-through and VIE structures, the offshore holding company infuses cash raised in the foreign market into the operating subsidiary in China by taking on debt or issuing equities on a major foreign stock exchange.  Alibaba chose the New York Stock Exchange while Baidu chose NASDAQ.
Direct (e.g. Stock Connect) and indirect (e.g. through a VIE or “pass through” structure) foreign investment in China offer opportunities for investors in the robust Chinese economy. But every economic opportunity is accompanied by risk.  Despite the emergence of Stock Connect and recent bankruptcy reforms, the risk of recovery on all Chinese investments remains high because local governments with political ties retain significant influence over the restructuring process. 

Historically, China approached financial distress as a matter of public concern, not a purely financial issue to be resolved by a distressed company and its creditors/stakeholders.  For example, China’s restructuring law, known as the Enterprise Bankruptcy Law or EBL, prioritizes employees by subordinating almost all creditor claims to employee claims.

More significantly for direct foreign investors infusing cash through Stock Connect, the government and judicial authorities wield substantial control over a debtor’s reorganization efforts under the EBL.  Under Chapter 8 of the EBL, the parallel to Chapter 11 of the Bankruptcy Code, a debtor may manage its assets under the supervision of an administrator, or the administrator may operate the business and administer assets by engaging existing management.  Court-appointed administrators take an active role in reorganizations in China, even forcing liquidation over the objections of creditors and the debtor.  The administrators are frequently government officials from the local bureaus and departments with political ties to labor groups.  Thus, coordinating with the local government is an essential element to any restructuring in China.

The indirect foreign investor must also overcome challenges related to pass-through or VIE structures.  Courts in China have ruled that certain VIE structures are illegal.  Alibaba’s prospectus concedes that “the [Chinese] government may not agree that these arrangements comply with [its] licensing, registration or other regulatory requirements, with existing policies or with requirements or policies that may be adopted in the future.”  But, the risk of a government crackdown is decreased if there is no threat to national security and the government has an interest in seeing the financing completed.  However, in some cases, the operating subsidiary has used political connections with local officials to successfully nullify the VIE agreements, making enforcement of legal rights by foreign investors virtually impossible.

In many VIE and pass-through structures, the foreign investor obtains (or seeks to obtain) security for the investment, usually in the form of a guaranty or pledge of shares.  The effectiveness of the security, however, has depended on the approval of local government agencies.  For example, until recently, a guaranty by the operating Chinese entity required prior approval from the State Administration of Foreign Exchange (“SAFE”).  SAFE recently relaxed its regulations by removing the approval requirement, and replacing it with a requirement that onshore subsidiaries merely notify SAFE of any guaranty to a foreign investor.  In many pass-through structures, the offshore holding company pledges its shares in the onshore operating subsidiary to the foreign investor.  Share pledges, however, are similarly subject to approval by the local Ministry of Commerce.  In an EBL restructuring, the shares held by the offshore holding company in the onshore operating subsidiary are structurally subordinated to the operating subsidiaries’ creditors.

In the past, the local State Administration of Industry and Commerce (“SAIC”) and local courts often rejected a foreign investor’s use of its security to remove the legal representative of the operating subsidiary, even if the foreign investor obtained prior approval for the security from SAFE or the Ministry of Commerce. Recently, foreign investors have seen more success with attempts to effectuate reorganizations.  In June 2014, the Supreme People’s Court enforced a shareholder resolution to remove the legal representative without updated records from the SAIC.  In another recent case, a local court refused to compel the legal representative to surrender the operating subsidiary’s legal seal, known as its “chops,” and business licenses.  The liquidators appealed to the Suzhou Intermediate People’s Court where the onshore shareholder had less influence, and the shareholder agreed to a settlement pending a ruling by the court of appeal.

As China opens its markets to foreign investors through enhanced direct investment, like Stock Connect, it should undertake three additional modest reforms to its restructuring laws to attract and protect those investors.  First, the role of the bankruptcy administrator must be transparent, and its authority should be subject to greater limits and creditor oversight.  Second, offshore and onshore creditors should be treated equally under the law.  Third, political collusion among local interest holders and governments should be reduced (its elimination is an unrealistic first step, but is an ultimate objective).  For the latter, China’s recent campaign to crackdown on local corruption brings hope, but additional legal reforms are necessary to create a more certain investing environment.