China VIEs Are Dead And I Told You So

The Wall Street Journal just published an article on the threat of the proposed PRC foreign investment law on major companies in China that have used the VIE structure to enter into prohibited business sectors. Among the companies in the cross hairs are a number of major foreign businesses such as Amazon, Pearson and CBS. Add to that the Chinese Internet giants Sina, Weibo, Alibaba, Baidu, Tencent and Youku and you pretty much have the entire Chinese Internet sector lined up on the firing line. The Journal seems to be treating this as a shocking new development.  

But none of this is new. In fact, I told you so, as the below posts (which are just a sampling) reveal.

1-22-2015 China VIEs Are Dead. Done. Over. Stick A Fork In Them.

6-3-2013 China VIEs. Avoid, Avoid, Avoid.

10-10-2011 VIEs In China. The End Of A Flawed Strategy.

In the 2011 post, I vehemently set forth the proposition that VIEs are to be avoided as illegal:

None of this is actually new. These risks have long been known. However, the clarity of the Regulations means it is now nearly impossible to claim that Chinese law on these issues is ambiguous or unclear. Where Chinese law says that ownership by foreigners is restricted or prohibited, the law means what it says. Foreigners who invest in violation of the law are making a bet that the violation will be ignored. This is extremely unlikely in today’s China. Such bets are sucker’s bets and should be avoided at all costs.

We have been speaking out against VIEs for years and just about every time we do so, someone says that if they are illegal, why have so many large law firms, large accounting firms, and large companies gone along with them? The answer is simple. Money. Big money. Really big money. Now, some of these same law firms and accounting firms and companies are denying that anything has changed. And why is that? Again, money. Only this time they are taking positions not so much to make more money going forward, but to avoid losing through lawsuits the money they have already made.

The big time business press is now picking up on what I have been saying for years: the VIE structure is illegal, its underlying contracts are void, and the VIE companies will now be required to either restructure or shut down. Foreign investors will lose a lot of money and the Chinese side will come out on top. This all makes me wonder why it was that so many kept insisting that China would permit foreign companies to operate illegally in China for an extended time period

It is important to understand how this will all come down. Over the years analysts have said that there is no real risk with VIEs because the Chinese government will not want to shut down these major players in the Internet and e-commerce sector. The Journal article above repeats this. The problem with this proposition is that it misses the real threat.

First we need to consider the background. The fact that the Internet/e-commerce companies are big and profitable is not relevant. The Chinese government does not care about this. What the Chinese government cares about is that its Internet and e-commerce sector is right now dominated by foreign investors and it does not consider that to be a good thing. At all. To understand this basic attitude, check out my recent posts on China File.

On the other hand, the Chinese government understands that China requires a powerful and well run Internet as this is a prerequisite for a modern and powerful state. Thus, the Chinese government has no desire to shut down the foreign controlled internet; but it does wish to regain control over it. The Chinese government likely will accomplish this in two stages:

First, the truly foreign owned and controlled VIEs such as the Amazon and Pearson ventures will be required either to shut down or transfer their assets to Chinese entities.

Second, the majority of VIEs formed by Chinese entities will be required to restructure by buying out their foreign investors at what will likely be fire sale prices.  The goal here will be to put Chinese citizens permanently in control of what are nominally public entities. This is apparently the path currently being forged by Alibaba and Baidu.

In either case, the foreign investors will be squeezed out of VIEs and they will then come under the control of Chinese persons and entities. The result of all this will be a destruction in value, with the burden of that destruction falling almost exclusively on foreign investors. In other words, the money invested by the foreign investors will essentially be “gifted” to the Chinese people. Sorry.

The post China VIEs Are Dead And I Told You So appeared first on China Law Blog.

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.

Source: http://www.chinalawblog.com/2015/04/china-vies-are-dead-and-i-told-you-so.html