New Legislation on Foreign-funded Financial Institutions in China
January 31, 2002 | BY
clpstaff &clp articles &On December 12 2001 the State Council promulgated the PRC Regulations Concerning the Administration of Foreign-funded Financial Institutions (the New Regulations),…
On December 12 2001 the State Council promulgated the PRC Regulations Concerning the Administration of Foreign-funded Financial Institutions (the New Regulations), which have replaced prior legislation enacted by the State Council on February 25 1994. The aim is to update legislation on financial services to help China meet its WTO obligations.
The New Regulations govern the following financial institutions established and engaging in financial services businesses in China in accordance with the relevant laws and regulations of the PRC: i) foreign-funded banks with headquarters in China; ii) branches of foreign banks in China; iii) equity joint venture banks (EJV banks) established by foreign financial institutions and Chinese companies or enterprises; iv) foreign-funded financial companies with headquarters in China; and v) equity joint venture financial firms (EJV financial firms) established jointly by foreign and Chinese financial companies or enterprises.
The Investors
In line with the country's WTO commitments, the New Regulations loosen the restrictions on the Chinese investor in EJV banks and EJV financial firms, while no substantial changes are available to the foreign investors. According to Article 2 of the New Regulations, Chinese companies and enterprises, including non-financial institutions, are allowed to invest in EJV banks and EJV financial firms. Although the New Regulations have not stated the requirements of the Chinese investors in these firms, it appears that the forthcoming implementing rules of the New Regulations will specify the details.
In an effort to boost supervision over financial institutions, the New Regulations specify the documents that foreign investors shall submit for approval. When applying to set up foreign-funded financial institutions, in addition to other conditions set out in the 1994 regulations, foreign investors shall be under the effective supervision of the competent authorities where the foreign investor is located and shall have obtained approval of such authorities for setting up a financial institution in China. Further, the foreign investors shall meet the prudential requirements set by the People's Bank of China (PBOC), China's central bank, which may be set out in the forthcoming implementing rules.
Registered Capital
According to the New Regulations, the respective minimum registered capital of a wholly foreign-funded bank, an EJV bank, a foreign-funded financial company and an EJV financial firm remains unchanged. However, the investors of these financial institutions are required to fully contribute the registered capital, which replaces the stipulation of the 1994 regulations of contributing 50% of the registered capital as the paid up capital. Also, the New Regulations grant the PBOC the right to increase the minimum capital requirement and to set out the renminbi proportion of the contribution of the registered capital, aiming to adjust the requirements of the registered capital and contribution in renminbi when China gradually opens its financial markets to foreign investment.
Unlike other foreign-funded enterprises in China, the investors of a proposed foreign-funded financial institution are required to make registered capital contributions before the financial institution formally obtains approval from the PBOC and obtains a business licence, according to Article 14 of the New Regulations.
Scope of Business
The New Regulations?provision of business activities also reflects China's commitment to open its financial markets. In contrast with the 1994 regulations, it is now possible for foreign-funded banks to have a wider scope of business under the New Regulations, which may cover such businesses as deposit taking, bank card businesses, etc., subject to the PBOC's approval.
Subject to the approval of the PBOC, both wholly foreign-owned financial companies and EJV financial firms may also engage in, in addition to the above services, deposit taking, with minimum deposits of Rmb1 million (replacing US$100,000), or the equivalent in freely convertible currencies, with a maturity of not less than three months.
It seems that under the New Regulations, foreign-funded financial institutions are not required to obtain foreign currency business permits from the State Administration of Foreign Exchange. As to the restriction on foreign financial institutions' renminbi businesses, the New Regulations grant the PBOC the power to set out the limitations on geographic area and customers, in line with WTO commitments.
Supervision and Administration
Aiming to apply the principle of national treatment to foreign-funded financial institutions, the New Regulations adapt some of the rules applicable to financial institutions with domestic investment. Except for foreign bank branches, foreign-funded financial institutions inter alia are required to meet requirements such as an 8% capital adequacy ratio, a minimum 25% ratio of the balance of floating assets to the balance of floating liabilities, a maximum ratio of outstanding loans granted to the same enterprise or affiliates to capital of 25%, a maximum ratio of fixed assets to equity interests of 40%, and a 70% ratio of foreign currency deposits taken in China to total foreign currency assets taken in China.
In addition, foreign-funded institutions are required inter alia to submit adjustments to business scope, amendments to the articles of association and changes to shareholder(s) who hold not less than 10% of the capital or the total amount of shares to the PBOC for approval, and register with the State Administration of Industry and Commerce or its branches. The New Regulations increase the penalties and adapt criminal liabilities for violation of the regulations.
On December 26 2001, the Banking Supervision Department of the PBOC released the draft implementing rules to the New Regulations for comment. It is expected that the New Regulations as well as the forthcoming implementing rules will pave the way for foreign-funded financial institutions to gain greater access to China's commercial banking market.
By David Yu
Llinks Law Office,
Shanghai
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