Reuters-US investors want clarity on Bidens vague curbs on China tech
September 27, 2023 4 min 838 words
这篇报道涉及到美国投资者对拜登政府关于中国科技领域模糊规定的要求，呼吁提供更明确的指导。他们认为这些规定太过模糊，并将合规责任放在了投资者身上，因此希望获得更多的清晰信息。 文章指出，这些规定旨在保护国家安全，防止美国资本支持中国军事领域。拜登总统上个月签署了一项行政命令，限制了美国对敏感的中国科技领域的新投资。随后，财政部启动了一个制定规则的过程，金融公司们争分夺秒地在9月28日之前提供意见。预计这些规则将在明年实施。 这些规定适用于美国个人、居民、企业以及海外企业的美国分支。它要求在半导体与微电子、人工智能和量子信息技术等领域进行某些中国投资时必须通知财政部，并完全禁止其他类似投资。除了风险投资和私募股权公司外，对冲基金、银行以及可能跟踪指数的基金也可能受到影响。金融业高管和律师们对这一提案的广泛和模糊性表示担忧。 他们的主要关切包括：规则如何适用于美国个人；哪些具体的中国实体将受到限制；以及如何更好地定义公开交易证券的拟议豁免。 这些规定将投资者置于确定新规范范围和如何遵守的困境中，导致了巨大的合规成本和法律风险。这意味着投资者必须弄清楚哪些投资符合新规定的范围，以及如何合规，从而导致了巨大的合规成本和法律风险。 在解决这些问题以及其他问题方面，一些公司计划推动制定受限实体和投资清单，类似于制裁制度。然而，一些消息来源表示怀疑财政部是否会采取这一路线，因为这将降低该计划的灵活性，而目标是尖端技术，很快就会过时。 总之，这一报道强调了美国金融界对于拜登政府关于中国科技领域的投资规定的需求，呼吁提供更明确的指导，以减轻投资者的不确定性和合规负担。与此同时，它也指出了政治上的敏感性，因为一些国会中的中国强硬派正在推动加强限制措施。这可能导致一些公司开始完全避免覆盖领域的投资。
U.S. financial firms are pushing for greater clarity on proposed new rules curbing U.S. investments in some China technology sectors which they say are too vague and put the onus of compliance on investors.
Aiming to protect national security and prevent U.S. capital from aiding China's military, President Joe Biden issued an executive order last month restricting new U.S. investments in sensitive Chinese technologies. The Treasury Department subsequently kicked off a rule-making process to implement the order, and financial firms have been rushing to meet a Sept. 28 to provide input. The rules are expected to be implemented sometime next year.
The proposed rule applies to U.S. persons - including U.S. citizens, residents, businesses and U.S. units of overseas businesses. They must notify the Treasury when making certain investments in China in the semiconductors and microelectronics, artificial intelligence and quantum information technologies sectors, and bans other such investments altogether.
In addition to venture capital and private equity firms, hedge funds, banks and potentially funds that track indexes are likely to be affected by the proposal, which financial industry executives and lawyers complain is broad and ambiguous.
Among their key concerns: how the rules would apply to U.S. persons; which specific Chinese entities would be subject to the restrictions; and better defining a proposed exemption for publicly traded securities.
"The scope is pretty broad," said Timothy Keeler, a partner at law firm Mayer Brown, noting it applies to Chinese entities operating beyond China. "It could apply to companies that are outside of China but are subsidiaries of Chinese companies or controlled by a Chinese person."
While the U.S. already has restrictions on some Chinese investments in the U.S. and U.S. investments in China, the order creates a new program. Unlike a process conducted by the Committee on Foreign Investment in the United States, a panel comprising U.S. government agencies, the new program will not involve case-by-case reviews of investments. And in contrast to sanctions, it does not envisage a list of restricted entities or companies.
That means investors have to figure out which investments come under the scope of the new rule and how to comply, creating significant compliance costs and legal risks.
"That puts a fair amount of burden on an investor," said a former Treasury official.
They may also bar U.S. persons from "knowingly directing" covered transactions by non-U.S. persons. But the threshold for knowledge, or what directing means, is unclear.
"We are hearing a lot about the issue of a U.S. person directing the activities of a non-U.S. person," said Jen Fernandez, a partner at law firm Sidley Austin.
"At what level does 'directing' kick in and what does that mean for these non-U.S. private equity funds that may have a dual national sitting as a partner?"
The program proposes exempting publicly traded securities and index and mutual funds, but financial firms want those securities to be more tightly defined. One key question is whether shares in initial public offerings allocated prior to trading would be carved out.
To address these and other issues, some firms plan to push for a list of restricted entities and investments, similar to a sanctions regime. Former Securities and Exchange Commission chair Jay Clayton, now an adviser with law firm Sullivan & Cromwell, voiced this idea when he told a House of Representatives committee on China this month that "Wall Street responds very quickly" to lists of barred entities.
Some sources, though, said they doubted the Treasury would go that route, which would reduce the program's flexibility and, since the target is cutting-edge technology, quickly become outdated. "That just doesn't appear to be where this process is heading," said Keeler.
A Treasury spokesperson did not respond to a request for comment but said in the proposal that it welcomes input. The rules are necessary because U.S. investments can be exploited to accelerate the development of sensitive technologies that threaten U.S. national security, the Treasury and administration has said.
Financial firms say they support the administration's national security goals but worry about increased liability and the economic costs of restricting capital flows. U.S.-China tensions have already seen acquisitions of Chinese companies by U.S. firms sink almost 60% from January this year through early August compared with the same period last year.
"Protecting U.S. national security is a paramount obligation of the federal government, but as the Treasury states, maintaining global capital flows need not be inconsistent with that," said Peter Matheson, a managing director at the Securities Industry and Financial Markets Association, a financial industry lobby group.
Lobbying to contain the rules, however, is politically sensitive, especially because China hawks in Congress are pushing bills to make the restrictions tougher. Given the uncertainty, companies may start avoiding the covered sectors altogether, said Fernandez.
"I do think we’re going to see a lot of de-risking," she added.