In the news: SEC gets serious, Caterpillar's M&A disaster and Actavis leaves China
January 28, 2014 | BY
clpstaff &clp articles &This week the SEC's decision on the Big Four hit the headlines. Elsewhere, Actavis left China, Caterpillar's mistakes were exposed and plans for a possible 12 new free trade zones were announced
SEC bans Big Four
The long dispute over regulators' access to audit documents (provoked by accounting fraud investigations) has escalated with the SEC imposing a six-month ban on the Chinese units of the Big Four. They intend to appeal against the ruling and continue servicing their clients as the ruling does not go into immediate effect. The appeal is expected to last years, and failure would put the market at huge risk for not only the companies listed (and looking to list) in the US but also for multinationals with bases in China.
Sources:
This decision has actually come in the midst of conciliation between the US and China that allows for the PCAOB's reviewing of audit papers through the CSRC when a company is in trouble. This agreement has been in use since May 2013. Progress was being made and although cooperation between the PCAOB and CSRC is key, resolution lies above the levels of regulation and administrative courts - in diplomacy. The SEC stands by its laws of listing and open data, while like any Chinese regulator, the CSRC will fight to keep control of its turf and remain in line with the government's general approach towards data security. Dodging the issue this time will simply lead to an instant dismissal or permanent suspension the next time a Chinese company is investigated and refuses disclosure.
More from CLP:
Caterpillar gets bulldozed
Caterpillar's $677 million purchase of ERA, Siwei's holding company, was supposed to help the company break into the world's largest coal industry. After major accounting problems had been unearthed at Siwei, Caterpillar took a goodwill impairment charge of $580 million and claimed it only discovered the problems five months after the deal closed at the end of 2012. However, documents and interviews with those involved reveal that debt and fraud were rampant at Siwei long before and after Caterpillar's acquisition. Much legal action ensued between Caterpillar and Siwei's ex-CEO Wang Fu. Siwei was eventually removed from the company name.
Source:
Siwei was an attractive investment for foreign companies as it was no longer state-owned and was listed in Hong Kong. However with its lack of emphasis on due diligence (especially when the entire world is aware this needs to be done extra carefully in China), Caterpillar dug its own grave. Documents submitted to a US court show that Caterpillar's board of directors did not ask for the results of the year-long due diligence investigation, and also turned a blind eye to whether Siwei's financial problems had been resolved. Gaining market share and dominance seemed to be the sole initiative of the purchase. Many lessons to be learnt for foreign enterprises here.
More from CLP:
12 more free trade zones?
Beijing has in principle agreed to approve 12 free-trade zones, triggering mixed reactions among foreign investors. Shanghai's FTZ was only launched four months ago, and there are concerns on how it will stand out if other cities and provinces develop their own. If they all follow the same model, this will eventually lead to more competition for foreign investment and policy support from the central government. What began with an initiative to get Shanghai to lead the next round of economic reform in China now appears to have given way to another round of power struggles between city and provincial officials.
Sources:
Given that almost every city and province has applied for a free-trade zone, total approval is highly unlikely. Having so many free-trade zones nationwide conflicts with the premier's original idea of a designated, unique, investment-attractive zone. Foreign investors are already dealing with complications in the existing Shanghai FTZ, and launching more zones in less mature and sophisticated cities seems to be a hasty decision. This is an internal political discussion that requires much thought regarding the international economic growth prospects of the proposed cities and of the nation as a whole.
More from CLP:
Actavis leaves “business-unfriendly” China
Following GSK's threat last summer to leave the market when faced with bribery and pricing fines, the world's second largest generic drug manufacturer, Actavis, has left, claiming the Chinese market is too risky and its regulations too inconsistent. But GSK has already made a massive investment in China while Actavis has not, and GSK can protect itself with innovative products and technology while Actavis relies solely on drugs going off patent. As China seeks to develop its domestic pharmaceutical industry and consumers seek lower prices, competition intensifies between Chinese generics and multinational pharmaceuticals that lack R&D.
Source:
China is undoubtedly hard to do business in, but many practitioners argue it is no worse than any other emerging market. Generic manufacturers like Actavis were able to piggyback onto the industry, but as China's Essential Drug List grows with more generic medicines so does the challenge of keeping up with competitive prices. The strong desire for cheaper drugs is easily met by Chinese drug-makers, but less so by multinationals with global business models and high profit targets. How will the courts and policymakers strike a balance in the industry? Will only innovation keep multinationals afloat in this unique consumer market?
More from CLP:
This premium content is reserved for
China Law & Practice Subscribers.
A Premium Subscription Provides:
- A database of over 3,000 essential documents including key PRC legislation translated into English
- A choice of newsletters to alert you to changes affecting your business including sector specific updates
- Premium access to the mobile optimized site for timely analysis that guides you through China's ever-changing business environment
Already a subscriber? Log In Now