Provision on Foreign Exchange Administration of Domestic. Securities Investment by Qualified Foreign Institutional Investors

Transcription

1 NON-OFFICIAL TRANSLATION FOR INFORMATION ONLY Provision on Foreign Exchange Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors Chapter 1 General Overview Article 1 This Provision is formulated based on the Regulations of the People's Republic of China on Foreign Exchange Administration and the Measures on Administration of Domestic Securities Investment of Qualified Foreign Institutional Investor (Year 2006, decree no.36 of The China Securities Regulatory Commission, The People s Bank of China, The State Administration of Foreign Exchange) to regulate the foreign exchange management of Qualified Foreign Institutional Investors (hereinafter called QFIIs ) in the domestic securities market of China. Article 2 QFIIs shall appoint their local custodian (hereinafter called Custodian ) to process relevant procedures as required in the Provisions. Article 3 QFIIs and their Custodian shall comply with regulations relevant to foreign exchange management in China. Article 4 The State Administration of Foreign Exchange and its Branches and Foreign Exchange Administration Department (hereinafter called SAFE ) shall, as required by law, conduct supervision, administration and inspection of investment quota, cash account, cash receipt and payment, and foreign exchange in relation to domestic securities investment by QFIIs. Chapter 2 Management of Investment Quota Article 5 The quota control mechanism applies to domestic securities investment by QFIIs in China. SAFE approve the investment quota of individual QFII and encourage medium and long term investment. Article 6 QFIIs shall submit the following documents to SAFE when applying for initial investment quota, opening foreign currency account and special RMB account: (1) Application documents from Custodian and QFII that include: QFII s basic information, Statement on Sources of Fund and Investment Plan, Letter of Undertaking - not to withdraw funds within the lock-up period and SAFE Registration Form for QFII. (please refer to Attachment 1 for sample); (2) Copy of Securities Investment Business License issued by the China Securities Regulatory Commission (hereinafter called CSRC ); (3) Notarised Letter of Authorisation from QFII to Custodian; (4) Other documents as required by SAFE. When applying for increase in investment quota, other than item (1) and item (4) mentioned above, QFIIs shall also submit the QFII Foreign Exchange Registration Certificate (hereinafter called SAFE Certificate ) and explanatory letter of domestic investment on the existing investment quota which shall contain the following content: asset allocation and movement, investment profit and loss, compliance fulfillment and stock average turnover rate, etc. Article 7 Each investment quota application by an individual QFII shall not be less than the equivalent of USD 50 million, and the accumulated quota shall not be more than the equivalent of USD 1 billion. SAFE may adjust the afore-mentioned quota based on economic and financial

2 condition, supply and demand of foreign exchange market, and the international balance of payment. QFIIs shall not submit application for quota increase within one year since the last investment quota approval date. Article 8 QFIIs shall remit-in the investment principal within 6 months upon the investment quota approval, and no overdue remittance shall be made without approval. If the principal is not fully remitted but more than the equivalent of USD 20 million within the prescribed deadline, the investment quota is reduced to the actual remitted-in amount. If the currency of the remitted principal is not in USD, QFIIs shall calculate the USD equivalent amount based on the conversion rate table of various currencies against USD published by SAFE in the month. Article 9 The lock-up period for investment principal is 3 months for pension funds, insurance funds, mutual funds, charity funds, endowment funds, government and monetary authorities, and Open-Ended China Funds launched by QFIIs; while that for other types of QFII is 1 year. Lock-up period for QFII s investment principal is counted from the date on which the QFII fully remits in the principal amount. For QFIIs that do not remit in the principal in full amount within the prescribed deadline, the lock-up period shall be counted starting from 6 months after the approval of investment quota. The above-mentioned Open-Ended China Funds refer to open-ended securities investment funds that are publicly raised offshore by QFIIs, with at least 70 per cent of fund assets investing in China domestic securities market. QFIIs shall submit the original copy of fund prospectus and Chinese translation of its core contents to SAFE for filing within 20 working days after establishment of the Open-Ended China Fund. The above-mentioned investment principal lock-up period refers to the time period that restricts QFIIs from repatriating their investment principal overseas. Chapter 3 Account Management Article 10 QFIIs can, based on the quota approval letter from SAFE, open a separate foreign currency account and a corresponding special RMB account with the Custodian for their proprietary fund and clients fund to whom they are providing asset management services. QFIIs that have established Open-Ended China Funds shall open a foreign currency account and a corresponding special RMB account for each Open-Ended China Fund. Custodian shall, within 5 working days after opening the foreign currency account(s) and special RMB account(s) for QFIIs, report to local SAFE bureau where the Custodian is domiciled for filing, report and submit the official custodian agreement to SAFE as well as obtain the SAFE Certificate on behalf of QFIIs. Article 11 Income of the foreign currency accounts includes: principal remitted-in by QFIIs from overseas, interest income, funds transferred from QFIIs special RMB accounts and other income as approved by SAFE. Expenses of the foreign currency accounts include: funds transferred to QFIIs special RMB accounts, funds repatriated back to overseas and other expenses as approved by SAFE. Income of the special RMB accounts includes: funds transferred from QFII s foreign currency accounts, proceeds from the sale of securities, cash dividends, interest income and other income as approved by SAFE. Expenses of the special RMB accounts include: purchase of tradable securities products (including stamp duty, fees, etc), payment of tax, custody fees, audit fees and

3 management fees as well as other related taxations or fees, funds transferred to QFII s foreign currency account and other expenses as approved by SAFE. Funds maintained in the QFII s foreign currency accounts and special RMB accounts cannot be used for purposes other than onshore securities investment. Article 12 QFIIs are not allowed to transfer funds between their proprietary account, clients fund account and the Open-Ended China Fund account. Fund transfer between multiple Open-Ended China Fund accounts held by the same QFII is also not allowed. Article 13 The interest rates applied to the QFIIs foreign currency accounts and special RMB accounts shall be based on the relevant regulation announced by People s Bank of China. Article 14 In the event of any of the following, the QFII shall, within 1 month, liquidate all its assets, close its foreign currency account(s) and special RMB account(s) opened with the Custodian and the QFII s investment quota will be void at the same time: (1) The Securities Investment Business License has been revoked by CSRC; (2) The QFII remitted-in less than the equivalent of USD 20 million within 6 months after approval of initial investment quota; (3) The QFII repatriated its investment principal and resulted in the remaining principal balance onshore to fall below the equivalent of USD 20 million; (4) SAFE revoked the QFII s existing investment quota according to this Provision; (5) Any other circumstances as stipulated by SAFE. The Custodian shall report to local SAFE bureau where it is domiciled and surrender the SAFE Certificate to SAFE within 5 working days after QFIIs foreign currency account(s) and special RMB account(s) are closed. Chapter 4 Foreign Exchange Management Article 15 QFIIs may, according to the investment plan and relevant description for quota application and within 10 working days prior to their actual investment, notify their custodian banks to convert the foreign currency needed for the investment into RMB and transfer to its special RMB accounts. QFIIs that have remitted-in the accumulated principal less than the equivalent of USD 20 million cannot convert foreign currency into RMB for investment. Article 16 For Open-Ended China Funds, they may, after the lock-up period, remit or repatriate on monthly basis the net amount of monthly subscription and redemption. For net redemption, QFIIs shall calculate the repatriated principal amount based on the Custodian s calculated principal and profit ratio as of the last trading day of the previous month. The repatriated principal amount will be allowed to be remitted-in in the future. For net subscription on Open-Ended China Fund, inward remittance with amount less than the equivalent of USD 50 million (inclusive) can be conducted freely followed by filing by the Custodian to local SAFE bureau where the Custodian is domiciled. If the remitted-in amount exceeds the equivalent of USD50 million, QFIIs shall, within 10 working days prior to remittance, apply to local SAFE bureau where the Custodian is domiciled with the photocopy of SAFE Certificate. Upon approval by the local SAFE bureau, QFIIs can then proceed with relevant process. For net redemption of Open-Ended China Fund, repatriation with amount less than the equivalent

4 of USD 50 million (inclusive) can be conducted freely followed by filing by the Custodian to local SAFE bureau where the Custodian is domiciled. If the repatriation amount exceeds the equivalent of USD50 million, QFIIs shall, within 10 working days prior to repatriation, apply for the approval from local SAFE bureau where the Custodian is domiciled with application letter, photocopy of SAFE Certificate and explanation letter on investment profit and loss. Upon approval by the local SAFE bureau, QFIIs can then proceed with relevant process. Article 17 Except for Open-Ended China Fund, other QFIIs may, after the investment principal lock-up period, apply to SAFE for repatriation of their principal with the following documents: (1) Application Letter; (2) Original SAFE Certificate; (3) Explanation letter on principal injection and investment track records; (4) Other documents as required by SAFE. Upon approval, SAFE shall issue approval document and reduce the QFII investment quota accordingly. Custodian shall, based on SAFE s approval document, proceed with the fund repatriation procedure for the QFIIs. Article 18 Except for Open-Ended China Fund, other QFIIs who are to conduct repatriation for accumulated realized profits shall, after obtaining certain audit report issued by certified public accountants in the PRC, apply to local SAFE bureau where the Custodian is domiciled for repatriation via the Custodian with the following documents: (1) Application Letter and relevant supporting documents on profit repatriation decision; (2) SAFE Certificate; (3) The audit report on investment profits issued by certified public accountants in the PRC; (4) Tax clearance certificate on profits; (5) Other documents as required by SAFE. After reviewing, the local SAFE bureau will issue approval document if approved. Custodian shall, based on the approval document, proceed with the foreign exchange and repatriation procedure for the QFIIs. Article 19 Custodian shall record QFIIs principal remittance records in the SAFE Certificate in an accurate and timely manner. Article 20 SAFE may adjust QFII s repatriation timing, amount and timeframe based on China s economic and financial condition, supply and demand of foreign exchange market and international balance of payment. Chapter 5 Statistics and Monitoring Administration Article 21 In the event of any of the following, QFIIs shall update their SAFE Certificate with SAFE within 5 working days and submit written report: (1) Change of basic information, such as QFII s name, responsible person, major shareholders or actual controller and etc; (2) Substantial penalty imposed on QFIIs or their major shareholders, actual controller by other supervision authority (including overseas authority) which may significantly impact the QFII s investment operations or cause the suspension or cancellation of relevant business qualification; (3) Change of local custodian and designated local securities company or other relevant and important information; (4) Change of account name, information of account opening bank, etc;

5 (5) Change of fund prospectus of Open-Ended China Fund; (6) Any other circumstances as stipulated by SAFE. For change of Custodian, the new local Custodian shall submit draft custodian agreement to be signed with the new local Custodian and explanation letter of the new custodian s basic information and description in relation to asset custody business, and a new notarised Letter of Authorisation. In addition, the official custodian agreement shall be submitted to SAFE for filing within 5 working days after the opening of the foreign currency account and special RMB account. Article 22 Custodian shall submit the relevant reports in relation to QFII s foreign exchange and local securities investment according to the below provisions in an accurate and timely manner: (1) Report QFII Inward/Outward Remittance Report for any remittance and repatriation of funds or foreign exchange by the QFIIs within 2 working days after occurrence of such activities (please refer to attachment 2 for sample report); (2) Report QFII Domestic Securities Investment Monthly Report (1) and (2) within 8 working days of the following month (please refer to attachment 3 for sample report); (3) Report previous financial year s QFII Domestic Securities Investment Annual Financial Report (1) and (2) which is audited by certified public accountant in the PRC within the first three months of the following year (please refer to attachment 4 for sample report). Article 23 In the event that QFIIs commit any of the following activities, SAFE shall, in accordance with the Regulations of the People's Republic of China on Foreign Exchange Administration and relevant regulations, impose penalty, and may reduce the QFIIs investment quota down until cancellation: (1) Transfer or sell of investment quota and other unlawful foreign exchange behaviour; (2) Provide fictitious information or material to Custodian or SAFE; (3) Proceed with foreign exchange related to repatriation or remittance without following the rules; (4) Failure to comply with SAFE s requirement while providing information or material related to foreign exchange and domestic securities investment; (5) Involve in activity that violates any other foreign exchange rules. Article 24 In the event that Custodian commits any of the following activities, SAFE shall, in accordance with the Regulations of the People's Republic of China on Foreign Exchange Administration and relevant regulations, impose penalty. For serious events, SAFE shall, together with CSRC, terminate the Custodian s qualification: (1) Proceed with remittance of principal exceeding the investment quota approved by SAFE, or after the required timeframe (i.e., remittance after 6 months upon the investment quota approval); (2) Proceed with repatriation of principal and profit on behalf of QFIIs without following the rules; (3) Proceed with account opening or account closing of the foreign currency account and special RMB account without following the rules. Proceed with foreign exchange or transferring of funds without following the rules stipulating the income and expenses of account; (4) Fail to submit reports and relevant information to SAFE in accordance with relevant rules or fail to report relevant condition to SAFE according to related rules; (5) Fail to report the balance of international payment statistics according to relevant rules; (6) Involve in activity that violates any other foreign exchange rules.

6 Chapter 6 Supplementary Articles Article 25 All the documents to be submitted to SAFE under this Provision shall be in Chinese. For those documents provided in both foreign language and Chinese translation, the Chinese version shall prevail. Article 26 SAFE is authorized to interpret this Provision. Article 27 This Provision shall come into effect from the date of promulgation. The Interim Provision on Foreign Exchange Administration of Domestic Securities Investment by Qualified Foreign Institutional Investors (SAFE Notice No.2 for year 2002) and the Circular of the General Affairs Department of SAFE on Relevant Issues Concerning the Management of Foreign Exchange of Qualified Foreign Institutional Investors (Huizongfa No. 124 for year 2003) shall be abolished from the same date. Disclaimer: The translation has been prepared and presented by HSBC Bank (China) Company Limited ("the Bank") based on information obtained from sources it believes to be reliable but which it has not independently verified. Whilst every care has been taken in preparing such information, the Bank and the HSBC Group make no guarantee, representation or warranty and accept no responsibility or liability as to its accuracy or completeness. No part of this presentation may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of HSBC Bank (China) Company Limited.

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