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Unwind the VIE and go home

There is a interesting editorial in Caixin today. It was written by Wang Rao, CEO of Chinese investment bank e-Capital. Wang argues it is time for overseas listed Chinese companies to unwind their VIE structures and seek listing at home. The editorial comes on the heels of an announcement that Chinese investment manager Shengjing had launched an investment fund dedicated to helping overseas-listed Chinese to delist and list instead on China’s stock exchanges. I have long argued that Chinese markets are the appropriate place for Chinese companies to list, since Chinese investors and regulators are better able to understand the companies. The Chinese stock markets, however, have not developed sufficiently for this to happen, I had forecast it would take 5-10 for the necessary reforms to make domestication possible. It appears that things may be moving faster than I expected.

The main factor driving this thinking is the rapid development of China’s own stock markets. The China Stock Market (SSE Composite) has more than doubled in the last year. Perhaps even more important is the success of China’s new third board, the National Equities Exchange and Quotations (NEEQ). NEEQ listed an average of 193 companies a month for the last four months, and now lists 2,343 companies with a total market cap of over US$180 billion. These are mostly small companies with an average market cap of only $77 million. Regulators have promised to tighten supervision of this lightly regulated market, and time will tell whether this market will be plagued with the rash of frauds that were seen with US reverse mergers on the US OTCBB. 

Vipshop - gross vs. net

Two research reports came out recently against Vipshop Holdings (VIPS), a Chinese e-commerce company listed on NYSE. One report, from Beijing based J Capital, apparently focuses on differences between US regulatory filings and Chinese statutory filings. The J Capital report has not been made public, and my observations are based on the press reports. The company has pushed back on this report saying J Capital read the wrong statutory filings. I don’t put much faith in these types of analyses, since there are many reasons why those filings might be different that don’t point to fraud in the US filings. 

The other report is from heretofore unknown research firm Mithra Forensic Research (Mithra). Mithra has taken the more traditional short selling research methodology so effectively used by the likes of Muddy Waters that involves throwing the kitchen sink at the company. At the heart of Mithra’s allegations is that VIPS is improperly recording revenue.  

While it is disappointing to see another billion dollar plus market-cap Chinese company come under short attack, I am slightly encouraged because this attack may be different than many of the earlier attacks. Carson Block has said that frauds in the US typically are a result of overly aggressive application of ac-counting standards, but in China, frauds have typically been exposed as situations where large parts of the company simply do not exist. 

VIEs are dead, long live the WFOE

The State Council, China’s cabinet, last week promised policies to boost e-commerce in China. Included in the proposed reforms is a promise to reduce shareholding restrictions on foreign investments.Premier Li Keqiang appears to be leading the effort. 

Nearly all of China’s larger internet companies have Cayman Islands incorp-orated parent companies that were used to facilitate taking foreign capital and listing in overseas markets. Because current Chinese regulations severely re-strict foreign companies from participating in the internet sector, the much maligned variable interest entity (VIE) structure was created to circumvent the rules by operating E-commerce businesses in Chinese companies controlled through contracts instead of through ownership. Investors soon learned the painful lesson that contractual control is inferior to actual ownership.

In January, the Ministry of Commerce issued a proposed foreign investment law for public comment. The new foreign investment law makes it clear that the VIE structure does not circumvent the foreign investment restrictions. In other words, it doesn’t work. The proposed law has a twist – if the foreign company is Chinese controlled, then investment from that foreign company would be treated like domestic investment, and would not be subject to foreign investment res-trictions. The proposed solution works perfectly for many of China’s largest internet companies, like Alibaba and Baidu, which are controlled through corp-orate governance structures that leave voting control in the hands of minority Chinese shareholders (management).

Regulatory reforms stalled

A number of regulatory reforms related to auditing in China appear to have stalled, creating risk for investors. 

The most significant change was proposed in Hong Kong, where the regulation of listed company auditors would be taken away from the Hong Kong Institute of CPAs (HKICPAs) and given to the Financial Regulatory Commission. Hong Kong had faced the embarrassment of having its regulatory equivalency with the European Union revoked because of the lack of an independent audit regulator. The HKICPA has proven to be an ineffective regulator. Public consultations were held in Autumn 2014 and then everyone went silent. In March, HK Secretary for Financial Services and the Treasury, Professor KC Chan, reported that the government had completed the public consultation and found majority support for the direction of the reforms. The consultation conclusions are to be published in the middle of this year. 

China’s Ministry of Finance issued draft regulations on cross-border audit services on April 21, 2014. The proposed regulations would ban foreign auditors from working in China, requiring them to work with affiliates on the mainland.  While the proposed regulations had no meaningful effect on the Big Four, since they all have huge practices on the mainland. I believe the regulation was targeted at the many small US CPA firms that had been traveling to the mainland to audit reverse mergers. Chinese regulators felt that shoddy work by some of these foreign firms had unfairly tarnished the reputation of Chinese accountants. Perhaps unexpectedly, the proposed regulation caused uproar among smaller Hong Kong CPA firms that had significant practices serving mainland companies with listings in Hong Kong. As far as I can tell, nothing has been done since April.

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