Financial Restructuring and Reform in Post-WTO China

Name: Financial Restructuring and Reform in Post-WTO China
Brand: Kluwer Law International
Price: 300.99 EUR
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James R. Barth Zhongfei Zhou(Editor)

Kluwer Law International (Publisher)

Published on 7. November 2006

408 pages

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978-90-411-5085-1 (ISBN)

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Content

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Table of Contents
Editors and Contributors
Foreword
Preface
Chapter 1 The WTO and Financial Restructuring in China
I. CHINA'S GATS/WTO COMMITMENTS IN FINANCIAL SERVICES
I.A. Horizontal Commitments
I.B. Specific Commitments in Financial Services
I.B.1. Banking
I.B.2. Insurance
I.B.3. Securities
II. CHINA'S FINANCIAL REGULATORY SYSTEM
II.A. Overview of China's Legal Structure
II.A.1. Laws
II.A.2. Administrative Regulations
II.A.3. Local Regulations
II.A.4. Autonomous Regulations and Separate Regulations
II.A.5. Rules of Departments
II.A.6. Rules of Local Governments
II.B. Financial Law and Regulation in China
III. BANKING
III.A. Development of China's Banking Institutions
III.B. Development of Banking Laws and Regulations
IV. SECURITIES
IV.A. Development of Securities Markets
IV.B. Structure of the PRC Securities Legal System
IV.B.1. Share Classification System in The Chinese Securities Market
IV.B.2. Overview of China's Securities Legal System
IV.B.2.a. Securities laws
IV.B.2.b. Securities regulations
IV.B.2.c. Securities rules
V. INSURANCE
V.A. Insurance Law
V.B. Insurance Rules
VI. CONCLUSION
Chapter 2 Banking Regulatory Law Reforms in China: A Long Way to Go Towards International Standards
I. BANKING REGULATORY SYSTEM
I.A. PBOC's Role in Banking Regulation
I.B. CBRC's Role in Banking Regulation
I.B.1. Regulatory Objectives
I.B.2. CBRC's Independence and Accountability
I.B.3. CBRC's Rule-Making Power
I.B.4. CBRC's Enforcement Powers
II. REGULATION OF BANK ENTRY
II.A. Entry Requirements
II.B. Application Procedures
II.C. Permissible Activities
III. ONGOING REGULATION
III.A. Capital Adequacy
III.B. Risk Concentrations
III.C. Provisioning
III.D. On and Off-site Examinations
IV. DEALING WITH PROBLEM BANKS
IV.A. Handling Unexpected Events
IV.B. Early Interventions
IV.C. Conservatorship and Reorganization
IV.D. Suspension for Internal Rectification
IV.E. Bank Closure
V. CONCLUDING REMARKS
Chapter 3 Independence and Accountability of the People's Bank of China: A Legal Perspective
I. INTRODUCTION
II. INDEPENDENCE OF THE PBOC
II.A. Functional Independence
II.A.1. Monetary Policy
II.A.2. Other Functions of the PBOC
II.B. Personal Independence
II.B.1. Qualification Requirements
II.B.2. Appointment
II.B.3. Dismissal
II.B.4. Term of office
II.B.5. Conflict of Interest
II.C. Financial Independence
III. ACCOUNTABILITY OF THE PBOC
III.A. Performance Accountability
III.B. Institutional Accountability
III.C. Instrument Accountability
IV. CONCLUDING REMARKS
Chapter 4 Implementation of China's WTO Commitments: The Compliance Issue in Banking
I. INTRODUCTION
II. IMPLEMENTATION OF THE WTO AGREEMENTS IN CHINA
III. CHINA'S BANKING LAW FRAMEWORK
III.A. Banking Laws
III.B. Banking Administrative Regulations
III.C. Banking Rules
III.D. Other Banking Normative Documents
IV. COMPLIANCE WITH WTO OBLIGATIONS IN BANKING
IV.A. Compliance with Market Access and National Treatment: New Development of China's Banking Law under the WTO
IV.A.1. Five Announcements since 2001
IV.A.2. Revision of the FFFI Regulation in 2001
IV.A.3. Revision of DRI in 2004
IV.B. Compliance with WTO Transparency Obligations
IV.C. Economic Needs Test
V. WTO TRANSITIONAL REVIEW OF CHINA'S BANKING LAW
V.A. Issues Raised in the TRM Meetings
V.B. China's Responses: Prudential Carve-out
VI. CONCLUSION
Chapter 5 Financial Restructuring and China's Asset Management Companies
I. INTRODUCTION
II. BACKGROUND: AMCS IN CHINA
II.A. Banking Reform in China
II.B. The AMC Concept
II.C. The Development of AMCs in China
III. THE LEGAL FRAMEWORK OF CHINA'S AMCS
III.A. The Mandates of the AMCs
III.B. Legislative Forbearance
III.C. The Regulatory Framework of the AMCs
IV. CORPORATE GOVERNANCE OF AMCS
V. STATE POLICY TOWARDS DISPOSING NPLS
VI. PROPERTY RIGHTS OF TRANSFERRED AMC ASSETS
VI.A. The Transfer of NPL Assets
VI.B. Notice of Creditor
VI.C. Transfer of Secured Interests
VI.D. Creditor Rights of AMCs
VI.D.1. Collection of Collateral
VI.D.2. Litigation
VI.E. The Provisions of Chinese Company Law
VII. FOREIGN PARTICIPATION
VIII. RESTRUCTURING STATE-OWNED ENTERPRISES
IX. CONCLUSION
Chapter 6 Liberalization and Reform of China's Securities Markets after WTO Accession
I. INTRODUCTION
II. CHINA'S SECURITIES SECTOR COMMITMENTS
III. IMPLEMENTATION OF ITS SECURITIES SECTOR COMMITMENTS
III.A. B-Share Business
III.B. Special Membership on Chinese Stock Exchanges
III.C. Joint Venture Securities Companies
III.D. Fund Management with Foreign Equity
IV. IMPLEMENTATION CHALLENGES
V. EFFECT OF VOLUNTARY LIBERALIZATIONS
VI. SEQUENCING OF LIBERALIZATION AND REFORM
VI.A. Money Market
VI.B. Foreign Exchange Market
VI.C. Government Bond Market
VI.D. Derivatives Market
VI.E. Corporate Bond and Equity (Securities) Market
VI.E.1. Building an Active Corporate Bond Market
VI.E.2. Increasing the Float
VI.E.3. Accounting, Auditing, and Disclosure Reform
VI.E.4. Regulatory Capacity
VI.E.5. Suspension and De-Listing of Listed Companies
VII. ROLE OF INSTITUTIONAL INVESTORS
VIII. ECONOMIC IMPACTS OF LIBERALIZATION
IX. CONCLUSION
Chapter 7 Insurance in China: Liberalization and Restructuring Post-WTO
I. INTRODUCTION
II. BASIC FRAMEWORK OF CHINA'S INSURANCE LEGISLATION
II.A. Insurance Law
II.B. Insurance Administrative Regulations
II.C. Insurance Administrative Rules
II.D. Bifurcated Regulatory Regime: Domestic vs. Foreign
III. CHINA'S WTO OBLIGATIONS AND INSURANCE
III.A. General Obligations
III.B. China's Insurance Specific Commitments
III.B.1. Form of Establishment
III.B.2. Geographic Coverage
III.B.3. Business Scope
III.B.4. License
III.B.5. National Treatment
IV. CHINA'S INSURANCE LEGAL REGIME IN THE CONTEXT OF ITS WTO OBLIGATIONS
IV.A. Legal Developments in the Call for WTO Compliance
IV.B. Lingering Issues
IV.B.1. Licensing
IV.B.1.a. High Capital Requirements
IV.B.1.b. Lengthy and Burdensome Licensing Procedure
IV.B.2. Transparency Obligations
IV.B.3. Rule by Law vs. Rule of Law
IV.C. Recent Regulatory Trends: Deregulation and Consolidation
V. CONCLUSION
Chapter 8 Financial Conglomerates in the People's Republic of China
I. INTRODUCTION
II. CHINESE LAW AND PRACTICE
II.A. Chinese Practice & Regulatory Framework with Financial Group
II.A.1. The History of China's Financial Business: from Mixture to Separation
II.A.2. China's Current Legal and Regulatory Regime With Respect of the Separation of Financial Business
II.A.3. China's Current Financial Groups
II.A.4. Problems and Risks in the Operations of China's Financial Groups
III. INTERNATIONAL PRACTICE
III.A. Conglomerate Advantages and Disadvantages
III.B. International Regulatory Response
III.C. Bank Holding and Financial Holding Company Rules
III.D. Regulatory and Supervisory Revision
III.D.1. Regulatory Revision
III.D.1.a. Intra-Group Exposures
III.D.1.b. Capital Calculation and Distribution
III.D.1.c. Management Authority and Autonomy
III.D.1.d. Systems and Controls and Conflict of Interest
III.D.1.e. Crisis Management
III.D.2. Supervisory Adjustment
III.D.2.a. Consolidated Supervision
III.D.2.b. Business Unit Supervision
III.D.2.c. Conglomerate Supervision
III.E. Conglomerate Law Models
III.F. Institutional Relations and Structure
III.F.1. Memorandum of Understanding
III.F.2. Administrative law or Regulation
III.F.3. Single Regulator
IV. CHINESE CONGLOMERATE POLICY REVISION AND REFORM
IV.A. General Policy
IV.B. Financial Groups
IV.C. Financial Groups
IV.D. Consolidated and Conglomerate Supervision
IV.E. Regulatory Revision
IV.F. Agency Relations and Joint Committee
V. CONCLUSION
Chapter 9 Financial Institution Insolvency in the PRC
I. INTRODUCTION
II. FINANCIAL INSTITUTION INSOLVENCY
II.A. Insolvency and Bank Insolvency Procedures
II.B. Court and Administrative Based Systems
II.C. Policy Options
II.C.1. Conservation
II.C.2. Administration
II.C.3. Restructuring or Rehabilitation
II.C.4. Liquidation
II.C.4.a. Voluntary Liquidation
II.C.4.b. Compulsory Liquidation
II.C.5. Bankruptcy
II.D. Support or Rescue Options
II.D.1. Market Support (Lender of Last Resort)
II.D.2. Restructuring or Rehabilitation (Regulatory Hearing or Regulatory Receivership)
II.D.3. Secured Lending and Capital Injections
II.D.4. Asset and Liability Transfers
II.D.5. Share Transfers
II.E. Supporting Statutory Provisions
III. OVERVIEW OF CHINESE BANKRUPTCY LAW
III.A. Introduction of Chinese Corporate Insolvency Law framework
III.B. Introduction of Chinese Financial Institution Insolvency Law Framework
III.C. Problems of Chinese financial institution insolvency framework
IV. FINANCIAL INSTITUTION INSOLVENCY LAW REFORM IN CHINA
IV.A. General Policy
IV.B. Agency Responsibility
IV.C. Joint Review Committee
IV.D. Insolvency Mechanisms
IV.E. Insolvency Procedures
IV.F. Administration
IV.G. Restructuring
IV.H. Liquidation
IV.I. Powers and Duties
IV.J. Policy Coordination
V. CONCLUDING OBSERVATIONS AND RECOMMENDATIONS
Chapter 10 China's Banking Law and Free Trade Agreements: The Case of CEPA
I. INTRODUCTION
II. RELATIONS BETWEEN THE CEPA AND THE WTO
II.A. WTO Mechanism of Examining Regional Trade Agreements
II.B. Application of the Enabling Clause
II.C. WTO-Consistency Issue
II.D. Impact of the CEPA on China's WTO Commitments: Non-Application of Some Rules
II.D.1. Anti-dumping and Countervailing
II.D.2. Special Safeguard Measures
III. CHINA'S SPECIFIC COMMITMENTS IN BANKING SERVICES UNDER THE CEPA
III.A. Two Important Concepts in the CEPA
III.A.1. Banking Service
III.A.2. Banking Service Suppliers
III.B. Market Access Commitments in Banking Services under the CEPA
III.C. Financial Cooperation Commitments under the CEPA
III.D. Relations of China's Banking Commitments under the WTO and the CEPA
IV. IMPLEMENTATION OF THE CEPA IN CHINA
IV.A. The State Council Notice
IV.B. The CBRC Notice
V. HOW TO ADJUST CHINA'S BANKING LAW UNDER THE CEPA AND WTO
V.A. Conflicts between China's Banking Laws and the CEPA
V.B. Two Approaches
VI. CONCLUSION
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Financial Restructuring and Reform in Post-WTO China

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