試析可變利益實體的不確定性

吳靖靚

[Abstract] The Variable Interest Entity structure is adopted broadly for Chinese enterprises in sensitive areas， such as restricted and prohibited industries， to seek overseas listing. The VIE structure is operated through a Listed Company typically domiciled in Cayman Islands， through a series of contractual agreements among the Listed Company， the Wholly Foreign Owned Enterprise in China， the Operating Company. This thesis aims to study VIE structure using Alibaba as an example， and analyze relevant impacts and risks.

[Key Words] Variable Interest entity； VIE structure； Alibaba； overseas listing； foreign investment； control

I.Introduction

The Variable Interest Entity （VIE） structure is designed typically for Chinese companies in sensitive areas in China， such as the Internet industry， to get listed in other countries. It has been 15 years for many Chinese giants to seek overseas listing ever since the Sina Corporation first adopted the VIE structure in 2000 Alibaba Group Holding Ltd. （Alibaba） had its Initial Public Offering in New York Stock Exchange in September， 2014， which was the third largest in history. Alibaba now has a greater market capitalization than CitiGroup and Facebook.

A.1.Regulatory Restrictions in China

a.⑴Restrictions Regarding Company Listing- Domestic Listed Company

In addition to procedural requirements demonstrated in various Chinese regulations including Corporation Law， Security Law and Administrative Measures for the Initial Public Offering and Listing of Stocks， public listing in China is scrutinized.

When an issuer seeks its initial public offering， it shall have a positive net profit of over 30 million Yuan accumulatively within the latest 3 accounting years. There are other mandatory requirements regarding issuers financial capacity， such as its total amount of stock capital and the proportion between intangible assets and its net assets.

b.⑵Restrictions Regarding Company Listing- Companies Listing Overseas

As policies loosen up， regulations no longer require the issuer to meet significantly high financial standards. However， when issuing stocks to given or non-given investors or listing overseas listing， intending companies shall get approval from the Securities Committee of the State Council， which is more difficult in practice than domestic listing and rather unpredictable.

c.⑶Restrictions on Foreign Investment

For the purpose of introducing advanced technology and protecting local economy， the Guidance Catalog of Industry with Foreign Investment divides all industries into four categories： encouraged， permitted， restricted and prohibited. The Ministry of Commerce restricts or prohibit foreign investment in sensitive areas， among other things， the Internet industry.

d.⑷Restrictions on Foreign Ownership- The Red-chip Structure

The Red-chip Structure， also known as the “Reverse Takeover”， was once popular among domestic corporations seeking financing elsewhere. Under the structure， founders of a domestic enterprise would set up a Special Purpose Venture （SPV） with their equity interests typically in Cayman Islands. The SPV would list overseas and after which time seek merger and acquisition with the domestic enterprise. However， such method， operating through equity control， is practically banned in 2006， where the Ministry of Commerce regulates “for the industries where foreign investors are prohibited from operation， no foreign investor shall take over any enterprise in such industries.” See Chart 1：

B.2.Primary Reasons for the VIE Structure as A Solution

Considering the abundance in capital and the good liquidity in international security market， listing in United States， Hong Kong and other countries has become increasingly attractive to Chinese companies. In addition， the restrictions regarding public listing and foreign investment constrain domestic corporations to be controlled through equity interests. Moreover， the Financial Accounting Standard Board requires a primary beneficiary of an enterprise that holds significant variable interest in a VIE to disclose its exposure to loss and involvement therein， and the nature and activity thereof. This standard provides legal ground for a domestic operating enterprise to claim financial benefits through a series of contractual arrangements.

As a result， the VIE structure， where investors build their control through a series of agreements rather than equity， takes its prime as the sole solution for corporations in sensitive industries to seek public listing overseas. However， there is a growing concern due to the uncertainty of this structure， which will be elaborated below.

II.The Nature of Various Interest Entity

Many stockholders of Alibaba might be surprised to learn that they are not buying shares from the operating Alibaba domiciled in China， they are buying shares from a shell Alibaba registered in Cayman Islands.

A.1.The VIE Organizational Structure

The investors of VIE structure usually benefit from a Listed Company typically domiciled in Cayman Islands， through a series of contractual agreements among the Listed Company， the Wholly Foreign Owned Enterprise （WFOE） domiciled in China， which is owned one hundred percent by the Listed Company， and the Operating Company （VIEs） domiciled in China and its Founders/Owners.

Alibaba states in its submission to U.S. Security Exchange Commission that it operate through wholly-foreign owned enterprises， majority-owned entities and VIEs. Relevant VIEs of Alibaba hold the ICP licenses and operate the various websites for its Internet businesses. Its submission further states that material VIEs include Zhejiang Taobao Network Co.， Ltd. （Taobao）， Zhejiang Tmall Network Co.， Ltd （Tmall）， and three others， are majority-owned by Jack Ma （Lead Founder）， and minority-owned by Simon Xie （Founder）. See Chart 2 above：

B.2.Control through Contractual Agreements

To build a connection between the Listed Company and the VIEs， the WFOE usually enters into a series of agreements with the Operating Company （VIE）， including agreements providing effective control over the VIEs and agreements providing the transfer of substantially all economic benefits of the VIEs.

a.⑴Agreements providing effective control over the VIEs

Agreements providing effective control over the VIEs typically include loan agreements， equity pledge agreements， call option agreement， and voting rights agreement.

i.①Loan Agreements

Loan Agreements grant loans to the PRC Owners to use the fund of the Listed Company for capitalization of the VIE. In Alibaba， the respective WFOE has granted an interest-free loan to the relevant VIE equity holders， which are Jack Ma and Simon Xie， for the sole purpose of capital contributions to the relevant VIE， i.e.， Taobao， Tmall and etc.

ii.②Equity Pledge Agreements

An Equity Pledge Agreement allows the PRC Owners pledging their equity interest in the VIEs to the WFOE as a guarantee?of the performance of their and the VIEs obligations under other VIE agreements. In Alibaba， Jack Ma and Simon Xie have pledged all their equity interests of the VIE as a continuing first priority security interest in favor of the WFOE to secure the outstanding amounts advanced under the relevant loan agreements.

iii.③Call Option Agreements

Call Option Agreements grant an option for WFOE to purchase the PRC Owners' all or part of equity interest in the VIE at the lowest permissible price under the PRC law. In Alibaba， they grant WFOE an exclusive call option to purchase equity owners equity interest at an exercise price equal to the registered capital in the VIE or the minimum price as permitted by applicable PRC laws， whichever is higher. In addition， they allow all relevant WFOEs an exclusive call option to purchase its assets. Each WFOE is entitled to all dividends and other distributions declared by the VIE.

b.⑵VIEs Potential Enforceability and Nature of Risk

Yahoo， SoftBank and Alibaba finally settled the dispute in 2012， agreeing that if Alipay goes public， Alibaba will be paid at least $2 billion but no more than $6 billion. However， this settlement might not be sufficient for Yahoo and SoftBank to compensate for the loss of the value of Alipay， yet there is little to be done. Assuming Yahoo and SoftBank sought for the enforcement to keep the VIE， i.e.， working， they would face challenges from force majeure， the validity of the contract and public policy.

i.⑶Force Majeure

Force majeure means any objective circumstance that is unforeseeable， unavoidable and insurmountable. And a party who was unable to perform a contract due to force majeure is exempted from liability in part or in whole in light of the impact of the event of force majeure， except otherwise provided by law. Although it is undecided under Chinese law whether government action， typically issuing a new regulation， constitutes force majeure， there are judgments supporting party to invoke force majeure as a successful defense.

ii.⑷Concealing Illegal Purpose

A contract is invalid if the parties intended to conceal an illegal purpose under the guise of a legitimate transaction， or the contract violates a mandatory provision of any law or administrative regulation. All five agreements under the VIE structure are agreed by both parties and not violating any mandatory provision， yet they are designed to evade foreign investment restrictions under Chinese law. It could constitute “illegal purpose”， and courts might declare the invalidity of the whole VIE arrangements.

iii.⑸Public Policy

A contract shall be invalidated if it harms public policy or state interest. Only one local governmental authority has suggested that the VIE structure is considered contravening current Chinese management policies related to foreign invested enterprises， and therefore is against public policy. This statement has not been adopted by any other authority， but it could be another fallback rule for declaring the VIE structure as void.

iv.⑹Nature of Risk- Conflict of Interests

Under the VIE structure， the PRC founders and the foreign investors play the most significant roles. The PRC founders are usually the CEO of the onshore operating company （VIE） and legal representative of the Listed Company. This allows the PRC founder to manage the whole system with the utmost freedom， but makes the foreign investors to be subject to the control of PRC founders. Such founder might exploit the resources of the VIE， for example， affiliate transactions or transfer core capital or supplementary capital of the company， while contractual control putting foreign investors in a passive position.

In Alibaba， Jack Ma is the chief executive of Alibaba Group and the majority shareholder of all material VIEs. He transferred Alipay without discussing the transaction with Yahoo and SoftBank. Yahoo and SoftBank are not the shareholders of VIEs， and such passive position is the reason why settlement is usually the solution in case of disputes for foreign investors.

B.2.The Increasing Regulatory Challenges

The main reason why Chinese companies are able to avoid foreign investment restrictions is that all current regulations only provide for situations involving “equity interest”. However， this might change soon due to the Foreign Investment Law （Exposure Draft）.

a.⑴Fall Back Rules

Some provisions do not clearly define contractual control， but they provide fallback rules considering foreign investors investing “in any other way”. If ever these regulations to be strictly applied， any form foreign investment， either directly or indirectly， either control through equity interest， or through contractual arrangements， would be considered as illegal. For example， a foreign investor shall not take advantage in any way of resources or equipment for the purpose of illegally engaging in the value-added telecommunications services.

b.⑵Regarding Contractual Control

Some regulations treat control through equity interests and control through contractual agreements as equal. A notice issued by the State Administration of Foreign Exchange defines “return investment” as control of a domestic enterprise via acquisition or exchange of the stock rights or agreement-based control or acquisition of assets. Shortly after the Alipay Dispute， the Ministry of Commerce issued Announcement No. 53 pursuant to the Security Review Circular （“M&A Rule”）. Foreign investors shall not avoid M&A security review through any means， including but not limited to commissioned shareholdings， trusts， multi-level investments， leases， loans， contractual control， and overseas transactions”. Though authorities interpret this regulation as limited to the industries that might affect national security， it gives particular relevance to the VIE structure.

Upon review， in prohibited or restricted industries for foreign investment， having “contractual control” by foreign investors might lead to severe penalties including being prohibited from continuing operations， as also admitted by Alibaba.

c.⑶The 2015 Foreign Investment Law （Exposure Draft）

Ministry of Commerce published the Foreign Investment Law of the Peoples Republic of China （Exposure Draft） （referred to as the “Exposure Draft” hereinafter） on January 19， 2015， to solicit opinions from the general public. In addition to the former “place-of-registration” standard， the Exposure Draft has introduced the “control” standard to determine foreign investors and foreign investments， according to which the legal nature of the VIE shall be redefined.

In light of the control standard， foreign investors would not be limited to only foreign individuals， foreign enterprises and other foreign/international entities， but also domestic entities that are controlled by these parties. It would constitute control of an entity if a party directly or indirectly owns more than 50 percent of the share capital， equity interests， assets， voting rights or other related rights and interests； OR it holds the power to appoint a majority of members of the board of directors or any other equivalent management body； OR it is able to exert decisive influence over the management， finance， personnel， technology and other aspects of the entity through contractual arrangements， trusteeships or other methods. Therefore， the contractual arrangements， i.e.， the VIE structure， between the foreign investment entity and the domestic operating company are subject to the restrictions in the Exposure Draft.

It shall be noted that Exposure Draft further exempts foreign investment entities that are controlled by domestic individuals. These Chinese-controlled entities are not considered foreign investment， who might file an application to competent authority for foreign investment for an approval of maintaining the VIE structure and continue its operation.

In short summary， if the Exposure Draft ever comes into effect， as a result， VIEs that are controlled by non-Chinese investors， including founders who are from Hong Kong or ethnic Chinese， would be subject to foreign investment restrictions.

IV.Conclusion

A.1.For Regulators

As the prosperity of the VIE structure contributing to the booming of the Internet industry and the diversity of the capitalization， its uncertainty has adverse effects on the interest of the investors and the authoritativeness of law.

a.⑴Domestic Clarification， Recognition and Regulation of the VIE structure

Listed companies have contributed substantially to the market economy. For now， the Exposure Draft has made progress in regulating the VIE structure. It has first adopted double standards， place-of-registration and control， to determine foreign investors， and recognized Chinese-controlled entities to be exempted from foreign investment restrictions. However， it does not provide detailed standards and procedures for a Chinese-controlled to be approved. Future regulations shall also clarify the standard of control. For example， it is unclear that all foreign investments shall be considered altogether while determining “control” or their proportion shall be calculated respectively. Different interpretations of the control standard would lead to complete different results determining foreign investments.

The regulators might recognize or clarify the use of the VIE， providing more detailed provisions for better supervision and better protection of investors rights.

b.⑵International Cooperation

The China Security Regulatory Commission （CSRC） may cooperate with other international security commission， such as the U.S. Security Exchange Commission， to supervise. The CSRC would learn instantly of the state of operation of the listed company， and whether it is in compliance with Chinese regulations， so as to take immediate actions.

B.2.For Foreign Investors

Due to the weak claim of contractual control， the uncertainty of the legal validity under Chinese law， and the increasing regulatory challenges， in order to mitigate the risks from the VIE structure， there are several precautions possible for foreign investors to take.

a.⑴Ensure the VIE Structure in Compliance with the Latest Chinese Law

Due to the increasing challenges from new regulations and local authorities， it would be essential for the VIE to be constantly in accordance with Chinese law. Any documentation regarding the validity of the VIE shall be subject to the scrutinized review from legal counsel.

As provided by Alibaba， they shall make sure that the contractual arrangements between WOFE， VIEs， and the VIE equity are valid， binding and enforceable in accordance with their terms and applicable PRC laws， rules， and regulations currently in effect， and will not violate any applicable PRC law， regulation， or rule currently in effect.

b.⑵Be Aware of the Proportion Requirements

Foreign investors shall control its proportion/ownership in the Listed Company， so as to void certain regulations that require approval from the government if it is more than certain percentage. For example， in the Exposure Draft， it should be fully aware of 50% of ownership requirement in the control standard. AND under the PBOC regulation in 2011， it regulates against foreign investment in the business of third party payment when it actually controls more than 10% directly and indirectly of the companys equity. Therefore， it would not be subject to these restrictions if the controlling portion were less than 10%.

In conclusion， taking these precautions by both the regulators and foreign investors， the security market and all parties of the VIE structure would be better off from the legal risks from the uncertainty of the VIE structure.

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