FOCUS: NEW INVESTMENT OPTIONS Foreign Minority Equity Investments in Chinese Commercial Banks
Nicholas C. Howson and Lester Ross
everal formal announcements and rumors over the last year indicate that foreign investors—both Sindustry players and financial and private equity investors—are taking an increasingly serious look at the acquisition of minority equity stakes in small and medium- sized commercial banking institutions in China. The serious dispute developing as this article goes to press between Newbridge Capital, Inc. (Newbridge) and certain government shareholders of Shenzhen Development Bank (SDB) regarding Newbridge’s proposed acquisition of such government shareholders’ shares in SDB will only intensify interest in these deals. These transactions began in 1996 and accelerated in 2001 (see p.20). Market rumors and sometimes opaque announce- ments continue to circulate regarding other potential minority equity investments by foreign institutions in the likes of the Bank of Communications, Huaxia Bank, China Merchants
Nicholas C. Howson and Lester Ross, are Of Counsel and Counsel, respectively, at Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York and Beijing.
18 July–August 2003 THE CHINA BUSINESS REVIEW Newbridge notwithstanding, passive stakes can be a growth activity
Bank, and China Minsheng Bank—in fact, almost Through Shares in Insurance Companies and any commercial bank other than the big four 2001 Notice Concerning Standardization of wholly state-owned banks: Agricultural Bank of Certain Items in the Absorption of Foreign China, Bank of China, China Construction Bank, Investment through Share Purchases in Chinese- and Industrial and Commercial Bank of China. Invested Insurance Companies. Foreign investors that have already participated Thus, each equity investment in a Chinese include multilateral institutions like the Asian commercial bank has been undertaken pursuant Development Bank (ADB) and the International to case-by-case approvals of the State Council Finance Corp. (IFC), financial institutions like acting on the advice of China’s central bank and Citigroup Inc. and The HSBC Group, and US pri- commercial banking regulator, PBOC. The for- vate equity institutions such as Newbridge, mulation and “imminent” release of a regulation although it is now extremely unlikely that explicitly allowing foreign equity participation Newbridge’s deal will go through. Rumored new in Chinese commercial banking institutions has entrants include United Overseas Bank of been a staple of the rumor mill in Beijing and Singapore, Hong Kong-based Bank of East Asia, Shanghai for more than a year. With the estab- and private equity powerhouse The Carlyle Group. lishment of the China Banking Regulatory Commission (CBRC), to which the PBOC has The regulatory environment ceded supervisory responsibility over commer- cial banks, the prospects for formal regulations No PRC legislation specifically authorizes any governing these transactions have improved. of these transactions. Several PRC laws and reg- What seems certain is that CBRC alone will ulations exist concerning foreign investment in issue regulations governing these transactions Chinese commercial banks, and rules govern and that the successor to the PRC Ministry of foreign purchases of equity in Chinese compa- Foreign Trade and Economic Cooperation nies in private transactions (see p.21). But no (MOFTEC)—the Ministry of Commerce law or regulation yet provides a specific legal (MOFCOM)—will not exercise its authority basis for foreign or foreign-invested entities to under the 1995 Several Issues Concerning the purchase stock in Chinese commercial banks Establishment of Foreign-Invested Companies organized as companies limited by shares (CLSs) Limited by Shares (FICLS provisions) or play its in private transactions, and such investments traditional role as the gatekeeper for all foreign were prohibited by a 1994 People’s Bank of investment. CBRC, like PBOC, will limit aggre- China (PBOC) notice. Contrast this with foreign gate foreign ownership to 24.9 percent in any investments in Chinese insurance CLSs, which one entity. PBOC, so far, has also tacitly set a 15 are undertaken in accordance with the China percent limit on ownership for any single for- Insurance Regulatory Commission’s (CIRC) eign investor (although the Newbridge/SDB deal 2000 Provisional Regulations on Investment was announced in October 2002 at more than
THE CHINA BUSINESS REVIEW July–August 2003 19 18 percent). This is higher than the 10 percent financial institutions or integrate them into a permitted for individual foreign equity invest- global business. ments in Chinese insurance CLSs. Second, PBOC approvals to date indicate that CBRC will likely take the same line as CIRC the “minority” equity interest made available to by deeming that foreign total investment of less any single foreign shareholder may be as high as than 25 percent in a CLS will bring the transac- 15 percent, up from 3 to 8 percent in the earliest tions outside the purview of the 1995 FICLS approvals. provisions (and MOFCOM approval) and thus Third, China is beginning to accept foreign will deprive the foreign investor or the investee direct investment in small Chinese banking entity of preferential treatment bestowed on tra- institutions that have already listed on the ditional foreign-invested enterprises (FIEs). By domestic A-share market. Fourth, as confirmed the same token, however, foreign investors will by the 2002 Notice Regarding the Transfer to not likely be subject to the regulated financial Foreign Investors of State-owned Shares and institution, two-year representative office, and Legal Person Shares of Listed Companies and minimum net assets requirements for FIE banks the Citigroup transaction structure, Chinese or branches of a foreign commercial bank. state institutions are being permitted to sell their Even without explicit regulations, a pattern existing interests in such banks, not merely suf- in the approvals rendered by the highest levels of fer dilution as new investors enter the fray. Fifth, China’s government seems to be emerging. First, and perhaps most significant, PRC central bank- China is moving away from approval of invest- ing regulators seem to be considering allowing ments by “safe” multilateral institutions, such as certain foreign investors to exercise real manage- ADB and IFC, and qualified “red chips” (off- ment control. The Newbridge/SDB deal origi- shore establishments of PRC institutions) and nally offered full management control (by toward major private foreign banking institu- contract—now apparently terminated) and tions and, with less certainty, even pure financial board representation for Newbridge. or private equity investors such as Newbridge. In fact, the Chinese government may be more will- Why not expand by ing to cede minority participation to such non- branching or through FIEs? strategic investors, which, unlike large financial services groups, may be less likely, in the view of Given China’s World Trade Organization PRC authorities, to dominate smaller Chinese (WTO) entry and new arrangements with
Foreign Minority Investments in PRC Banks to Date