On 19 February 2021, our firm’s Partner, Head of Banking and Finance department and Dispute Resolution department, Ms. Heidi Chui, was interviewed by Guangdong Television’s Evening News on Hong Kong’s latest developments and opportunities under the “Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area”, which was launched 2 years ago.

During the interview, Ms. Chui shared the latest initiative by the Ministry of Justice of the People’s Republic of China. The initiative allows eligible Hong Kong lawyers to practice in specified area of law in 9 cities in the Greater Bay Area after passing the qualifying examination and training. The initiative would enable Hong Kong lawyers to understand more about the Mainland legal market and further facilitate economic activities between the Mainland and Hong Kong.

Please click here to watch the interview (available in Chinese only).

Please contact our Ms. Heidi Chui (heidichui.office@sw-hk.com) for any enquiries or further information.

Background

On 8 February 2021, the Securities and Futures Commission (the “SFC”) published a consultation paper on (i) the Proposed Code of Conduct on Bookbuilding and Placing Activities in Equity Capital Market and Debt Capital Market Transactions and (ii) the “Sponsor Coupling” Proposal (the “Paper”).  This followed their thematic review of licensed intermediaries engaged in equity capital market (“ECM”) or debt capital market (“DCM”) over the state of the market as well as the practices and conduct of intermediaries.

In the Paper, the SFC highlighted a number factors which in their view had hampered the price discovery process for some offerings.  These included inflated or opaque demand, undesirable intermediary conduct such as brokers without a mandate “swarming” order books at the last minute with orders of unknown quality, as well as non-alignment of sponsors’ incentives and liabilities especially in larger IPOs which may lead to concerns on a sponsor laxing its due diligence enquiries in competition for the head of the underwriting syndicate.  With a view to meeting their regulatory objectives, the SFC sets out in the Paper their Proposed Code of Conduct on Bookbuilding and Placing Activities in Equity Capital Market and Debt Capital Market Transactions (the “Bookbuilding Code Proposal”) and the “Sponsor Coupling” Proposal (the “Sponsor Coupling Proposal”) and invited comments from market participants and interested parties.

The Proposed Code of Conduct on Bookbuilding and Placing Activities in ECM and DCM Transactions

Specifically, the SFC observed that the bookbuilding and placing activities of certain market participants are affected by substandard practices and control deficiencies in various areas, such as the lack of clearly defined roles or functions of intermediaries engaging in capital raising, fluid syndicate membership and fee arrangements, inflated demand, lack of transparency, conflicts of interest, preferential treatment or rebates paid to investors, lack of documentation and potential breaches of the requirements of The Stock Exchange of Hong Kong Limited (“SEHK”).

In the Bookbuilding Code Proposal, the SFC, among other things, purported revision of the Code of Conduct for Persons Licensed by or Registered with the SFC (the “Code of Conduct”) by way of a new paragraph 21 on Bookbuilding and Placing Activities in ECM and DCM Transactions (the “Proposed Code”).  This Proposed Code focused on expected standards of conduct and systems and controls in the following areas:

(a) assessment of the issuer and the offering – before engaging in an offering, a capital market intermediary (“CMI”) should take reasonable steps to obtain an accurate understanding of the issuer and establish a formal governance process to review and assess the offering which involves designation of member(s) of senior management to assess, for example, the structure of the offering, any actual or potential conflicts of interest and other associated risks;

(b) appointment of CMIs and overall coordinators (“OCs”) – the appointments of OCs and other CMIs and the determination of their roles, responsibilities and fee arrangements should all take place at an early stage:

(i) before a CMI (other than an OC) starts any bookbuilding or placing activities, it should ensure that (i) it has been formally appointed by the issuer (or another CMI in the case of a non-syndicate CMI) under a written agreement to conduct such activities, and (ii) the written agreement clearly specifies the roles and responsibilities of the CMI as well as a description of the fee arrangements; and

(ii) likewise, before an OC provides any services as stipulated in the Proposed Code to the issuer for a share offering, or before an OC participates in any bookbuilding or placing activities for a debt offering, it should ensure that (i) it has been formally appointed by the issuer under a written agreement to conduct such activities, and (ii) the written agreement clearly specifies the roles and responsibilities of the OC as well as a description of the fee arrangements;

(c) advice to the issuer – an OC should provide advice to the issuer on syndicate membership, fee arrangements, marketing strategy as well as pricing and allocation, and ensure that the advice and recommendations are balanced and based on thorough analysis, taking into account the issuer’s preferences and objectives as well as prevailing market conditions and sentiment, and aligned with all legal and regulatory requirements;

(d) marketing – an OC should advise and assist the issuer in developing an appropriate marketing and investor targeting strategy and should inform other syndicate CMIs of the marketing and investor targeting strategy so that they can carry out their own activities accordingly;

(e) rebates and preferential treatment – a CMI should not offer any rebates to its investor clients or pass on any rebates provided by the issuer.  In addition:

(i) for an IPO, a CMI should not enable any investor clients to pay, for each of the shares allocated, less than the total consideration as disclosed in the listing documents; and

(ii) for a debt offering, a CMI should not enter into any arrangements which may result in investor clients paying different prices for the debt securities allocated;

Furthermore, a CMI should, among other things, disclose to the issuer, the OCs, all of its targeted investors and the non-syndicate CMIs it appoints, any rebates offered by the issuer to CMIs and any preferential treatment of any CMIs or targeted investors (such as guaranteed allocations).  It should also advise the issuer against providing any arrangements whereby, in the case of an IPO, the investor clients would pay, for each of the shares allocated, less than the total consideration as disclosed in the listing documents and, in the case of a debt offering, the investor clients would pay different prices for the debt securities allocated;

(f) assessment of investor clients – a CMI should take reasonable steps to identify connected clients and core connected persons of the issuer and inform the OC before placing an order on behalf of such clients.  An OC should provide more information to CMIs to facilitate their identification of investors related to the issuer, such as a list of such persons or entities;

(g) bookbuilding, including order placement and order book management, pricing – an OC should ensure that the pricing and allocation recommendations made to the issuer fully take into account the principles and factors stipulated under the Proposed Code.  For instance, that the price is determined based on orders received from targeted investors during the bookbuilding process and that the securities are allocated to investors who can build a strong investor or shareholder base for the issuer.  It is also proposed to require the identities of all investors to be disclosed in the order book, except for orders placed on an omnibus basis.

Further, it is proposed that a CMI should:

(i) take reasonable steps to ensure that all orders placed in the order book on behalf of its own investor clients, itself and its group companies represent bona fide demand. The CMI must not place knowingly inflated orders;

(ii) make enquiries with its investor clients about orders which appear unusual, e.g., orders which are not commensurate with the client’s financial profile, before placing these orders; and

(iii) maintain adequate records of orders placed by its investor clients so as to substantiate that there are no fictitious or knowingly inflated orders placed in the order book.

On the other hand, an OC should:

(i) ensure that the identities of all investor clients are disclosed in the order book, except for orders placed on an omnibus basis;

(ii) make enquiries with CMIs if any orders appear to be unusual or irregular;

(iii) consolidate the order book by taking reasonable steps to identify and eliminate duplicated orders, inconsistencies and errors; and

(iv) segregate and clearly identify in the order book any proprietary orders of CMIs and their group companies;

(h) allocation – among other things, an OC or CMI should establish and implement an allocation policy which sets out the criteria for making allocation recommendations to the issuer;

(i) conflicts of interest – among other things, a CMI should establish and implement policies and procedures to identify, manage and disclose actual and potential conflicts of interests with investor clients and to establish and implement policies to govern the process for generating its own proprietary orders as well as making allocations to such orders.  It should give priority to investor clients’ orders over its own proprietary orders and those of its group companies and only be a “price taker” in relation to the proprietary orders; and

(j) disclosures to the issuer, other CMIs and investors – CMIs should, among other things, provide information in a timely manner and ensure that it is complete, accurate and has a proper basis, about connected clients and core connected persons of the issuer for a share offering, and about investor clients which have associations with the issuer, CMIs and their group companies for a debt offering, to the OC and non-syndicate CMIs appointed by them, and to disseminate the marketing and investor targeting strategy to non-syndicate CMIs.  It should also provide “book messages” and other information related to the offering to enable investor clients to make informed decisions.

The “Sponsor Coupling” Proposal

The SFC proposed “sponsor coupling” which requires that, among other things, the listing applicant should appoint at least one sponsor which is independent of the listing applicant who should also be appointed as an OC for the IPO, or have a group company which is also appointed as an OC for the IPO (the “Sponsor OC”).  Interestingly, the Sponsor OC should be appointed as OC and sponsor at the same time and at least two months before filing the listing application.  The listing applicant can appoint other OCs (which may or may not be sponsors of the IPO), which should be no later than two weeks after the submission of the listing application.

As observed by the SFC, the Sponsor Coupling Proposal was aimed to achieve effects such that, among other things, at least one sponsor would be free of potential incentives to limit due diligence in order to secure an OC role, and the Sponsor OC should be in a position to give comprehensive advice to the listing applicant throughout the transaction.

Analysis and Takeaways

The implementation of the Bookbuilding Code Proposal may possibly lead to a change in the executory structure of IPO deals, given that the timeframe has been set for appointment of the OCs and CMIs at an early stage.  Sponsor OC will find itself exercising both functions as sponsor and issuer’s marketing adviser at an early stage of an IPO.  The Proposed Code could also allow a more orderly execution of the bookbuilding and placing process in a given ECM or DCM transaction.

Moreover, the Sponsor Coupling Proposal may bring the interest of the sponsor and OC into better alignment.  The early appointment of Sponsor OC prior to commencement of the sponsor’s due diligence discourages a sponsor from  compromising its due diligence obligations.  From a regulatory perspective, OC which also has a sponsor hat may also be more well-equipped in discharging its regulatory obligations in relation to identification of duplicated orders or circumstances suggesting lack of genuine demands for the securities, in light of its knowledge about the listing applicant and its business acquired in the course of performing its due diligence functions as a sponsor.

Please contact our Partner Mr. Rodney Teoh for any enquiries or further information.

This newsletter is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage arising from or in connection with any decision made, action or inaction taken in reliance on the information set out herein.

(中文) 香港国际仲裁中心 (下称“港仲”) 在2021年2月9日发布了2020年的相关数据，对港仲的受案情况以及《关于内地与香港特别行政区法院就仲裁程序相互协助保全的安排》 (下称“《仲裁互助保全安排》”) 作出了综合数据统计，为仲裁参与人提供了重要的参考。

本文对这些数据进行了简要的介绍，如想查看港仲2020年数据的全文，请参见：https://www.hkiac.org/news/hkiac-releases-statistics-2020。

显著的成绩

在2020年，港仲共接收了318宗仲裁案件，受案量是过去10年来的最高。在这318宗仲裁案件中，203宗是由港仲管理，较2019年增长近20%。

争议总金额为688亿港元 (约88亿美元)，创下港仲自2011年开始公布此类信息以来的新高。

2020年提交的仲裁案件涉及来自45个司法管辖区的当事方。72%的仲裁案件以及86%的港仲管理仲裁案件是国际性仲裁案件。绝大多数仲裁案件的仲裁地为香港，所涉准据法数量多达12个。

在2020年，HKIAC举行了117次聆讯，其中80次全部或部分以遥距聆讯方式进行，37次是在香港进行的实体线下聆讯。

《仲裁相互保全安排》的发展

• 港仲也对在2019年10月1日生效的《仲裁互助保全安排》的发展提供了数据统计。截至2021年2月9日，港仲一共处理了37个向内地法院提出的仲裁保全申请。
• 在这37个申请中，34个申请是财产保全，2个申请是证据保全，1个是行为保全。
  所有财产保全申请所涉及的资产总额为125亿人民币 (约19亿美元)。港仲就前述每个申请皆根据《仲裁互助保全安排》下的要求出具受理函，并一般在收到申请的24小时内出具。



• 港仲注意到内地中级人民法院作出的24项裁定中，22项批准了申请人在提供担保/保证后进行财产保全的申请，2项此类申请被驳回。被保全的资产总额为100亿人民币 (约16亿美元)。
• 大约27%的申请是由中国内地的当事人作出的，73%的申请是由中国内地以外的司法管辖区 (即英属维尔京群岛、开曼群岛、香港特区 (下称“香港”)、萨摩亚、新加坡、瑞士和台湾地区) 的当事人作出的。约60%的申请涉及内地当事人拥有的资产或掌握的证据，24%的申请涉及非内地当事人所拥有的资产，16%的申请涉及内地和非内地当事人共同拥有的资产。

总结

近年以仲裁作为争议解决方式的民商事纠纷日渐增加，各仲裁机构受案量也不断上升。香港作为亚太区争议解决中心，是当事人值得信赖的仲裁地。受到疫情的影响，香港各仲裁机构 (例如港仲) 也在积极开拓创新，为当事人提供了与时俱进的仲裁服务 (例如遥距开庭等)。

本所诉讼及争议解决团队在2020年为当事人代理了多起仲裁案件，并利用线上和线下结合的聆讯方式，为内地、香港和其他司法管辖区的当事人提供了高效便捷的争议解决服务。

Between 2 to 5 February 2021, our firm’s Partners Mr. Willy Cheng, Ms. Catherine Por and Ms. Lai Lam participated in the largest Asia Pacific Regional Meeting ever, and the first regional meeting to take place virtually. The topic this year was “Forward to Better: Recalibrating the Business Environment”. INTERLAW is an elite global law firm network comprised of top tier independent law firms from over 150 cities worldwide. To enhance the relations of strategic partners, seminars and networking meetings are held regularly for members to discuss topical issues and latest legal developments.

On 2 Feb, our Partner Mr. Willy Cheng was a speaker for the topic of- “Balancing the Books: Tax at the vanguard of Recovery”. At the meeting, he explained the challenges presented by COVID-19 to Hong Kong’s economy and the relief measures rolled out by the Hong Kong government to relieve the burden of citizens and enterprises. He also illustrated the potential tax reforms that may increase government revenue and help Hong Kong’s economic recovery, such as goods and services tax and digital services tax.

Our firm’s partner, Mr. Willy Cheng at the Tax Meeting.

On 3 Feb, our Partners Ms. Catherine Por and Ms. Lai Lam, the vice-chair of the Diversity, Inclusion and Community committee (Asia Pacific) attended the meeting of “Leadership, Lessons and Long-term Strategy”. Panellists from across the region discussed diversity in their country and the strategies deployed for a more inclusive workplace. Catherine pointed out that Hong Kong aims to be a gender-equal society, but same-sex couples and LGBT groups still face challenges in view of recent litigation decisions.

Our firm’s partners, Ms. Catherine Por (Top Right) and Ms. Lai Lam (Bottom Right) attended the Diversity, Inclusion and Community Meeting.

On the last day of the meeting, our Partner Ms. Lai Lam attended the Regional Business Meeting and Networking Session where participants from across the globe reviewed the year past and discussed business development initiatives for the coming year.

Please contact Mr. Willy Cheng, Ms. Catherine Por or Ms. Lai Lam for further enquiries about this event.

(中文) 内地与港澳三地金融监管机构上周五（2021年2月5日）就「跨境理财通」所涉及的监管合作原则等事宜达成共识，并签署了《关于在粤港澳大湾区开展「跨境理财通」业务试点的谅解备忘录》（简称「谅解备忘录」）。

签署谅解备忘录的七大监管机构包括中国人民银行、中国银行保险监督管理委员会、中国证券监督管理委员会、国家外汇管理局、香港金融管理局、香港证券及期货事务监察委员会及澳门金融管理局。

正如我们在2020年7月发布的文章[SW1] 中提及，为促进粤港澳大湾区居民个人跨境投资便利化，中国人民银行、香港金融管理局及澳门金融管理局于2020年6月29日发出联合公告，宣布在粤港澳大湾区开展「跨境理财通」业务试点，并公布其框架内容。

为加强三地监管机构在「跨境理财通」业务试点下的监管合作，确保试点有效运行、风险可控，是次谅解备忘录由三地监管机构经平等友好协商签订，作为对各方既有监管合作的补充。

「跨境理财通」的基本原则

1. 属地管理原则
谅解备忘录的一大亮点，是确定「跨境理财通」业务试点以「业务发生地管理」为原则，遵循粤港澳三地理财产品和销售监管的相关法律法规。

2. 业务投资范围
内地与港澳监管机构分别同意采取有效措施确保「北向通」和「南向通」业务投资范围符合要求。

3. 资金管理原则
谅解备忘录中重申，「跨境理财通」业务试点资金管理原则为闭环管理，无论是「北向通」或「南向通」，所汇入的资金专款专用，理财产品赎回所得资金以人民币原路跨境汇回。

4. 资金及产品不可质押或担保
另外，内地以及港澳投资者不可将办理「北向通」或「南向通」业务试点的资金及理财产品用于质押、担保等其他用途。

5. 总额度和单个投资者额度管理
各方同意采取措施满足「跨境理财通」试点业务总额度和单个投资者额度管理的要求。谅解备忘录没有披露额度详情，但香港金融管理局于去年10月曾表示，「南向通」及「北向通」拟各设1500亿元人民币单边总额度，以及100万元的个人额度。

6. 其他指导事项
内地与港澳监管机构亦会就以下事项分别指导内地银行以及港澳银行：

• 对合资格理财产品进行尽职审查，全面了解理财产品的性质及风险，按要求评估理财产品风险级别及复杂性；
• 按照相关法律规定提供投资者保障措施；
• 按照相关法律规定履行反洗钱、反恐怖融资等义务；
• 加强投资账户管理，确保遵守「跨境理财通」业务试点资金管理原则；
• 加强业务管理，防止投资者将办理「北向通」或「南向通」业务试点的资金及理财产品用于质押、担保等其他用途；及
• 根据当地有关法律法规做好投资者个人资料保障。

监管合作四大方面

三地监管机构已就「跨境理财通」业务试点下的监管信息交流、执法合作、投资者保护、联络协商机制四个方面达成共识。

1. 监管信息交流
各方同意定期分享「跨境理财通」有关统计数据，包括参与「跨境理财通」的银行名单、合资格产品相关信息（如产品销售数据），以及「跨境理财通」试点业务总额度的使用情况等。各方亦会及时通知对方主管机构涉及「跨境理财通」的参与机构及产品的投诉事宜，以及涉及参与机构的违法违规行为。

2. 执法合作
各方同意在「跨境理财通」的执法领域加强合作，共同打击跨境违法违规行为。各方同意建立信息收集和通报机制，一方如对「跨境理财通」下的违法违规行为展开调查时，在符合相关法律法规及案情需要的前提下，应向其境外及境内的对口方通报。各方亦同意尽量配合一方因监管原因提出索取信息的请求。

3. 投资者保护
三地监管机构坚持公平、公开、公正、平等原则，依法保护投资者在交易中的各项合法权益。三地银行与跨境的合作银行须订立投诉协调和转介机制，确保投诉有明确负责单位跟进，以及为投资者提供便捷的跨境投诉渠道。对于「跨境理财通」业务试点在资金跨境汇划、理财产品购买及销售过程中产生的投诉，应按负责相关业务的银行所在地，由当地金融监管机构根据当地法律法规要求进行处理。

关于加强投资者金融知识教育，内地监管机构同意指导内地银行宣传「卖者尽责、买者自负」理念，做好产品的消保审查，认真审核投资者资质，履行好销售适当性原则。港澳监管机构则负责指导港澳银行宣传「负责任的投资态度」理念，做好产品尽职审查，认真审核投资者资格，进行适当的信息和风险披露，并履行投资者保障措施及相关规定，以减少不当销售风险。

4. 联络协商机制
各方同意定期举行联络会议，就「跨境理财通」运行和监管等议题进行讨论磋商，优化「跨境理财通」的各项安排，并促进谅解备忘录的执行及解决可能出现的问题。

生效

谅解备忘录将自三地监管机构于「跨境理财通」业务正式开始试点后生效。未来当「跨境理财通」向其他受监管金融机构开放时，各方可根据需要对谅解备忘录进行适当的修改或补充。

各界对三地监管机构签署谅解备忘录表示支持和欢迎

自去年「跨境理财通」框架公布以来，香港银行业界已积极筹备「跨境理财通」的相关财富管理产品和配套，并且配合监管机构及保持密切沟通，支持「跨境理财通」顺利实施，参与推动大湾区金融业发展。香港银行公会表示，业界就「跨境理财通」已经准备就绪，只待监管机构公布正式启动。

投资基金业界亦对三地监管机构签署谅解备忘录表示支持和欢迎，期待「跨境理财通」尽快推出。「跨境理财通」能助大湾区的资产管理连接起来，带动资金流动，香港亦能藉其成熟的资产管理经验，在大湾区金融业发展中取得优势。

各界均认为，「跨境理财通」会为大湾区金融业界开拓更广阔的市场及庞大商机，除了令理财产品更为多元化外，更可促进人民币跨境流通，推动人民币国际化。

总结