China’s already tough foreign currency control regulations have just gotten tougher
The Chinese market has gotten a little chillier for foreign investors. A new regulation recently publicized by the State Administration of Foreign Exchange (SAFE), now bans Foreign Invested Enterprises’ (FIE) from using foreign capital, converted to RMB, for the purpose of equity acquisitions. Simultaneously, a new amendment to tax regulations eases the way for domestic Chinese corporations looking to invest abroad.
This move is in line with other policies as of late, which have aimed to clamp down on the influx of Foreign Capital looking to buy an undervalued RMB and at the same time flee recessions in developing countries. Still, slowing foreign currency influx has up until this point not targeted enterprises and legitimate investing, making it something of an about face from China’s long standing support for foreign investment, which helped kick start the country’s economic boom 30 years ago, and the official policy of opening up markets.
The new regulation, Circular 142, was issued on August 29, 2008, though it wasn’t fully publicized until October. The circular, besides prohibiting equity investment with foreign capital, also restricts investment in “non-self-use” real estate properties, or investment in securities if those are outside the company’s business scope.
While not stopping all foreign investment, the regulation will severely limit those who can invest in China. Venture and private equity lawyer Rocky Lee explains that this new development “makes acquisitions and expansion capability hard” for FIEs.
An official source in the Ministry of Foreign Commerce, who spoke on conditions of anonymity, said that while he thought the circular contradicted China’s open market policies, there were enough loopholes to keep foreign investment flowing into China. He noted that domestic equity approved by SAFE and individual transactions that have “otherwise been provided for,” are excluded from the prohibition of foreign converted capital buying Chinese equity. These “otherwise provided for” transactions have not been defined. In addition, Circular 142 only defines the purchase of Chinese equity as prohibited, ignoring the purchase of assets altogether. In a note to clients, Janet Tang from the law firm Akin Gump Strauss Hauer & Feld, pointed out another loophole in the poor definition of what is “outside a company’s business scope.”
Economic Worry
The influx of foreign currency has caused China’s foreign reserves to skyrocket, which has fueled inflation, and put pressure on the currency to appreciate. In September alone, China’s reserves climbed USD 21.45 billion, putting China ’s surplus at $1.9 trillion. Though the currency hasn’t appreciated greatly since April of this year, remaining at around 6.85 to the dollar, the central bank has had to issue large amounts of notes to sterilize the reserves and keep the currency down, a process that can often only be done incompletely.
In the first half of the year large amounts of “hot money” - money chasing speculative gains - entered the country, putting pressure on the exchange rate. Amidst Chinese interest rate hikes and a falling dollar susceptible to US interest rate cuts, the conditions for foreign investors to hedge their capital in Chinese investments were perfect. Speculators played the currency arbitrage game under the guise of foreign investment, most commonly pumping money into stock and real estate markets.
At the same time the Chinese economy was under threats from falling international demand,and chaos in the stock and real estate market. The newest foreign exchange regulations aimed to help keep the exchange rate steady in the current tough market environment, easing the pressure on exporters, and hopefully calming some of the market volatility.
“Apparently, with these measures, the Chinese government will possess more accurate firsthand knowledge about the actual amount injected in China and converted into RMB int he name of foreign direct investment,” said lawyer Tang. “This information will also presumably help the government obtain authentic and reliable statistical data regarding foreign investment,” she added.
Istvan Pribilovics, former Chief of Budget for the Inter-American Development Bank, theorizes that the government doesn’t want foreign companies coming in and controlling the market, but “at the same time they also don’t want to create a situation where no foreign investors can come in.” This is why a loophole has been left in the new regulation, allowing for interpretation on a case-by-case basis.
Go West young corporations!
The government is at the same time encouraging spending abroad by Chinese companies. Another foreign exchange regulation, released around the same time as Circular 142, removes the need for approval from the Foreign Exchange Bureau for outward investment, requiring instead only registration with the bureau.
The regulation is aimed at encouraging Chinese companies, flush with cash, to invest in undervalued foreign companies, which are being devastated by the financial crisis. Many Chinese companies need intellectual property and foreign market access, which they can often only acquire through mergers and acquisitions.
Tom Kirkwood, of Kirkwood and Sons, says that over the past twenty years more than USD 500 billion has been invested by Chinese entities abroad, but that this is changing. Kirkwood predicts that in the next twenty years USD 2 trillion will leave the country in the form of overseas non-liquid asset purchases, which he calls COBI (China outbound investment).
Many Chinese corporations are currently engaging in the financial institutional partnering and acquisition stage of COBI. Recent examples include Shanghai Automobile Industry Corp.’s acquisition of a 20% stake in South African Standard Bank for USD 5.6 billion, and Bank of China bought a 30% stake in hedge fund Swiss Fund Management to facilitate private banking opportunities. “Many Chinese corporations are looking to buy expertise, rather than build it up themselves,” Kirkwood says. He notes that once they buy a stake in the company, the simple parts are often shipped to China to be manufactured, while the expertise stays abroad.
Things change
Many of the problems that Circular 142 was put in place to fight have suddenly and spectacularly changed over the past few months. With hot money inflows dropping considerably, and the balance sheets of some of China’s mightiest corporations dropping into questionable health, it is quite possible that within a few months China will be looking for more foreign investment, not less.
SAFE said in a recent announcement that it would clarify these regulations within six months, in order to ease the investment process for legitimate investors. We will have to wait until then to see what comes of it.