Jurisdiction - China
Reports and Analysis
China – Use of Offshore RMB in Foreign Direct Investments.

16 November, 2011

 

Legal News & Analysis – Asia Pacific – China – Investment Funds

 

On 12 October 2011, the Ministry of Commerce (MOFCOM) issued with immediate effect The Notice on Issues Concerning Direct Investment with Offshore Renminbi (Shangzihan [2011] No.889) (MOFCOM Notice). The following day, the People's Bank of China issued Administrative Measures on the Renminbi Settlement Business Relating to Foreign Direct Investment (PBOC Measures). The MOFCOM Notice regulates the foreign investment aspects of inbound investments made with offshore RMB, while the PBOC Measures cover the relevant currency regulations. The promulgation of these new regulations provides more investment channels for offshore RMB, and is perceived as an important step in the internationalisation of RMB. This article focuses on the MOFCOM Notice.

 

Scope of use

 

The MOFCOM Notice provides that foreign investors may use "lawfully obtained offshore RMB" for inbound investments. "Lawfully obtained offshore RMB" is defined to include:

 

  • RMB obtained offshore through cross border trade settlement, and RMB repatriated from China as dividends, share transfer proceeds, capital reductions, liquidation proceeds and early return on investments; and
  • RMB obtained offshore through lawful channels, including but not limited to proceeds received from the issuance of offshore RMB denominated bonds and shares.

 

Offshore RMB may not be used, directly or indirectly, for acquiring securities or financial derivative products, unless separately approved as a "strategic investor" by MOFCOM, or for making entrusted loans where a bank acts as an intermediary between a lender and a borrower. Foreign investors are required to undertake that the funds will not be used for such purposes.

 

For private equity fund managers, this development introduces the possibility of establishing RMB investment funds in offshore jurisdictions to raise RMB in Hong Kong with a view to making inbound investments across China in various industries including real estate.

 

Other applicable regulations

 

Inbound investments made with offshore RMB will be subject to the general regulations and approvals applicable to foreign investments in China, including Foreign Investment Industrial Guidance Catalogue, national security review of mergers and acquisitions by foreign investors, and antitrust reviews.

 

Investments will also be subject to industry-specific regulations and approvals, such as those applicable to the banking, securities, and insurance industries.

 

The MOFCOM Notice does not apply to RMB held onshore in China. Accordingly, investments made with RMB which is derived from foreign-invested enterprises (FIEs) in China and which has not been repatriated (such as dividends, share transfer proceeds, capital reductions, liquidation proceeds and early return on investments) remain subject to the current regulations.

 

Documents

 

In addition to the standard application documents required for foreign investments, inbound investments with offshore RMB must be supported by supplying to MOFCOM the following documents:

 

  • evidence or documentation of the source of the offshore RMB funds;
  • a statement regarding the use of such funds;
  • a completed and signed copy of the Cross Border Renminbi Direct Investment Information Form.

 

MOFCOM's approval is also required to alter the original investment capital of an existing FIE from other currencies to offshore RMB in order to take advantage of the new regulations. A board resolution and the amended contract/articles of association of the FIE must be submitted along with the above documents.

 

Procedures

 

MOFCOM's general delegation to the local authority of approval authority for foreign investments is applicable to inbound investments made with offshore RMB. However MOFCOM's approval is required in the following circumstances:

 

  • the amount invested is RMB 300 million or more;
  • the business of the FIE involves financial guarantee, financial leasing, small loans or auctioning;
  • the FIE is an investment company, venture capital or private equity investment enterprise;
  • the FIE is in industries subject to state regulation, such as cement, iron and steel, electrolysed aluminium and shipbuilding.

 

Upon receipt of a local authority's pre-approved Cross Border Renminbi Direct Investment Information Form, MOFCOM shall within 5 business days respond by either granting the approval or issuing opinions.

 

 

For further information, please contact:

 

Taylor Hui, Deacons

taylor.hui@deacons.com.hk

 

Yang Shen, Deacons

yang.shen@deacons.com.hk

 

Deacons Investment Funds Practice Profile in China 

 

Homegrown Investment Funds Practice Law Firms in China 

 

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