On 17 February 2023, the China Securities Regulatory Commission (CSRC) announced the new regulations for the filing-based administration of overseas securities offering and listing by domestic companies, which are set to take effect on 31 March 2023. The new measures comprised six documents, including the "Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies" (境内企业境外发行证券和上市管理试行办法) (the Trial Measures) and five supporting guidelines. The Trial Measures regulate the system, filing management and other related rules in respect of direct or indirect overseas issuance of securities by PRC enterprises and PRC enterprises with overseas parent entities and/or variable interest entity structures, which are referred to as "domestic enterprise(s)" in this article. We set out below some of the key changes and implications to Hong Kong market participants.
The Trial Measures will unify the CSRC procedures in relation to both H shares listings and red chip listings. Currently, there are two ways for PRC enterprises to list on The Stock Exchange of Hong Kong Limited (HKEx), with a summary of the procedures below:
The Trial Measures introduced a filing system where a domestic enterprise seeking to list on the HKEx, whether via H shares or red chip structure, shall file a filing report, a legal opinion and other relevant materials (if applicable) with the CSRC within three working days after its A1 application. The CSRC will, upon satisfaction of the submitted documents, within 20 working days after receiving the filing documents, conclude the filing procedure and publish the filing results on its website. Domestic enterprises that require a national security review must complete the relevant review before their A1 application and CSRC filing. Domestic enterprises that are in the technology, media and telecommunications industry may require a cybersecurity review, but it is unclear whether they need to file a consent or endorsement before their A1 application or CSRC filing.
In effect, the CSRC will be responsible for reviewing all domestics companies that intend to list their shares in Hong Kong, including both H shares and red chip companies under their scope of review.
The Trial Measures established a list outlining the circumstances where a domestic enterprise is prohibited from offering and listing securities overseas. The negative list sets out the following circumstances:
Note: A domestic enterprise that is prohibited from offering and listing securities overseas, which nevertheless lists overseas or fails to comply with CSRC filing requirements as required, may be subject to substantial penalties, and such liability may extend to the domestic enterprise’s controlling shareholder, actual controller, sponsors and other service agents.
The implementation of the Trial Measures will enhance the requirements and scrutiny for a PRC domestic enterprise intending to list its shares in an offshore market, including in Hong Kong. We noted above that some of these requirements will exceed what is currently required under the Listing Rules and Hong Kong law, and will afford the CSRC a higher degree of involvement in offshore listings, which can be encouraging news to certain market participants.
A Capital Markets team legal assistant, Valerie Chan, is one of the authors.
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