中伦观点 | 新常态下的金融投资争议呈现“四化”趋势（英文版）
编 者 按
近日中伦律师事务所合伙人霍伟律师在中国美国商会主办的Business Now期刊上发表了题为“Banking and Financing Adjust to New Economy”的文章。该文章讨论了中国经济增长放缓对金融投资及相关争议解决的影响，并进一步概括指出了新常态下金融投资争议呈现出的“四化”趋势。
In the Chinese mainland, the slowed economy has profoundly influenced banking and financing investments and the resolution of relevant disputes. On one hand, the speed of economic development decelerated from near 10 percent to 7 percent and the structure of the economy continues to undergo major government reforms. Accordingly, the driving factors of economic development were turning from resources, materials and investments to efficiency, green initiatives and innovation. On the other hand, through either trillions in stimulus packages, suspension of initial public offering (IPO) projects or other macro-control mechanisms, the government still plays a critical role in this new normal.
Considering these and other factors, banking and financing disputes reveal four fresh trends: complexity, expansion, quantification and crowded disputes.
The classic examples of banking and financing investment – equity investment, debt investment and mezzanine investment – are becoming more professional, complicated and innovative. Undoubtedly, the involvement of parties from diverse backgrounds in transactions highlights the sophistication of the underlying subject matter of disputes. Financial institutions are so obsessed with complex transactional structures, TOT/FOF for example, in the hope that such design can help them to operate business either that conforms to those supervisory requirements or takes a smooth detour around them. The truth is that complicated transactional structures can no longer be treated as effective tools to reduce risks; instead, they serve as catalysts and consequently result in a significant amount of disputes.
The range of banking and financing disputes has expanded greatly. Real estate investment trusts, New Third Board issuance, securitization, private equity investment and online financing have all sprung up and struggled to free themselves from those restrictions imposed by the traditional regulatory measures. Subsequently, these new developments have produced many unprecedented challenges to the regulatory status quo. Macro-control over investment policy, underdeveloped regulatory frameworks and insufficient risk pre-control are factors that contribute to financing parties’ defaults and further lead to the swell of disputes.
The quantity as well as the amount involved in the banking and financing disputes has increased tremendously. A conservative source has recorded that up to the end of 2012, the issuance of real estate trusts reached RMB 7.2 billion. Though the government is dedicated to implementing measures to control the market, such actions do not seem to effectively relieve the pain from small and mid-sized real-estate developers when they struggle with the term of redemption due to the insufficient cash flow. The ails of the economy have carried over to the banking and financing sectors, resulting in an eruption of defaults. It’s now common for the disputed amounts to exceed hundreds of millions in real estate cases, wreaking havoc on financial institutions.
Numerous investors are involved in banking and financing disputes, i.e. trust companies’ collective trust schemes, securities traders’ asset management programs, fund management companies’ and their subsidiaries’ asset management programs, private equity funds in the form of LLPs or contractual investment funds. Upon calling compulsory repayment to a halt, financial institutions will be released from the role as “gap-filler”, but will then be dragged into class actions initiated by investors who failed to profit and even lost their principal investment.
Banking and financing disputes can be creatively resolved during the slowing economy, but it will require the foresight of the regulatory authorities, precautionary measures adopted by financial institutions, support from the judicial system and the arbitration institutions, as well as intelligence, courage and professionalism of legal practitioners.
原文可参见中国美国商会网站
The article is available at the website of AmCham China (http://www.amchamchina.org/news/banking-and-financing-adjust-to-new-economy).