Summary of 2022 regulatory policies for the private equity industry
Preface
According to statistics from the Asset Management Association of China (“Association”), as of the end of 2022, there are 92,754 surviving private equity investment funds with a scale of 5.56 trillion yuan; 31,550 surviving private equity investment funds with a scale of 10.94 trillion yuan; There were 19,354 investment funds with a scale of 2.83 trillion yuan. As of the end of the third quarter of 2022, the market value of stocks held by private equity funds accounted for 5.1% of the circulating market value of A shares; the market value of bonds held accounted for 0.4% of the total market value of the bond market; new equity investment was equivalent to 76% of the total equity financing in the public market , 3% of the increase in the scale of social financing in the same period, and the principal of investment equity projects increased by 9.5% year-on-year; among the new investments of venture capital funds, the top five investment industries are all strategic emerging industries, and the total number of projects and the proportion of principal exceeds 70%. Since the registration system, among newly listed companies on the Science and Technology Innovation Board, the Growth Enterprise Market, and the Beijing Stock Exchange, the support rates of private equity funds are 89%, 57%, and 100%, respectively. It can be seen that even in 2022, when the epidemic is raging and global economic growth is sluggish, China's private equity industry is still developing steadily, playing an increasingly important role in increasing direct financing, promoting innovative capital formation, supporting technological innovation and industrial restructuring.
01
Relevant rules for the registration of private equity fund managers
and fund filing
1. "Notice on Matters Concerning Registration and Filing of Private Equity Fund Managers"
The Asset Management Association of China (the "Association") issued the "Notice on Matters Concerning the Registration and Filing of Private Equity Fund Managers" (Zhong Ji Xie Zi [2022] No. 203) on June 2, 2022. To facilitate the registration and filing business of private equity fund managers and applicant institutions, the Association has updated the "List of Application Materials for Registration of Private Equity Fund Managers" (the "New List"), and released the "Key Points of Concern for Private Equity Investment Fund Filing". Moreover, within a week after the announcement of the notice, the association also held multiple online training sessions on the new version of the list and key points of private equity fund filing.
Compared with the old version of the list, the new version of the list integrates multiple commitment letters, clarifies the work experience that different executives should have, refines the requirements for materials for investment capabilities, and strengthens the reporting of integrity information. With regard to the key points of private equity fund filing, the Association, on the basis of publishing two issues of "Private Equity Fund Filing Case Publicity", compared the current laws and regulations, self-regulatory rules and relevant requirements for the operation of private equity funds, combined with prominent problems exposed by major violations of laws and regulations in the industry in recent years, The core elements of products in various links such as fundraising, investment, and management have been refined, and the content of private equity fund filing concerns has been clarified and detailed.
2."Guidelines for the Registration of Private Equity Fund Managers and the Filing of Private Equity Investment Funds"
The Association issued the "Guidelines for the Registration of Private Equity Fund Managers and the Recordation of Private Equity Investment Funds" on June 24, 2022. Private equity fund filings, major changes in private equity funds, private equity fund liquidation, private equity fund reverse linkage policy applications, etc., and prepared "attachments" for the aforementioned registration and filing matters. Taking the registration of private equity fund managers as an example, the appendices of the business guide for registration of private equity fund managers include "Guidelines for Legal Opinions on Registration of Managers", "Template of Commitment Letter for Registration and Filing", "List of Materials for Manager Registration" and "Management of Asset Management Business Comprehensive Submission Platform". The four materials cover the core norms and documents required for the initial registration of private equity fund managers. Therefore, this guideline provides clear self-discipline guidelines for the registration and filing of private equity fund managers and private equity funds.
3."Measures for the Registration and Filing of Private Equity Investment Funds (Draft for Comment)"
On December 30, 2022, the Association issued the "Registration and Filing Measures for Private Equity Investment Funds (Draft for Comment)" ("Draft for Comment") and supporting guidelines, and publicly solicited opinions from the public. The opinion draft is a revision of the "Private Equity Fund Manager Registration and Fund Filing Measures (Trial)" ("Trial Measures") issued in January 2014, and plans to change the name of the Trial Measures to "Private Equity Fund Registration and Filing Measures". Specifically, the main amendments to the trial measures in the opinion draft are reflected in the following aspects: First, clarify the registration and filing principles of "compliance with laws and regulations, openness and transparency, convenience and efficiency", and emphasize the principle of "sellers are responsible and buyers are responsible" The origin of the private equity fund industry; second, clarify the registration standards for managers, and moderately increase the normative requirements; third, clarify the institutional arrangements for the entire life process of private equity funds "raising, investing, managing, and withdrawing", and clearly define venture capital funds; Fourth, add a special chapter on "Information Change and Submission" to emphasize continuous information disclosure and reporting obligations; fifth, strengthen self-discipline management throughout the process, and further enrich self-discipline management methods.
In addition, there are 3 supporting guidelines in the opinion draft, which are aimed at the basic operating requirements of private equity fund managers (“Guideline 1”), shareholders/partners/actual controllers (“Guideline 2”), legal representative/senior management personnel/executive partners and their designated representatives (“Guideline No. 3”). Among them, the No. 1 guideline puts forward requirements for private equity fund managers in terms of subject qualification, name, business scope, capital, executives' shareholding, financial status, business place, personnel, internal control system, emergency plan, business plan, and business prohibition. Clear and specific requirements, and stipulates the conflicting businesses that private equity fund managers are not allowed to engage in, the foreign shareholding ratio of private equity fund managers, and the situation where private equity fund managers' accounts in the association's registration and filing electronic system are locked. The No. 2 guideline has specific requirements and restrictions on the investment structure of private equity fund managers and the composition of shareholders/actual controllers (listed companies, shareholders/actual controllers of financial institutions; asset management products must not become actual controllers and have shareholding Proportion restrictions; restrictions on the shareholding ratio of conflicting business contributors) put forward the requirements; elaborated on the circumstances in which the manager "Dong Jian Gao" and the executive partner and their appointed representatives are not allowed to act in the opinion draft; clarified the company type, The criteria for the identification of actual controllers of partnership-type, state-owned, and foreign-funded private equity fund managers stipulates the joint actual controller and the situation of no actual controller; specific requirements are put forward for the actual controller of securities and equity fund managers; Circumstances of transfer of actual control; the corresponding disclosed related parties and conflicting business related parties shall be clarified. Guideline No. 3 clarifies the requirements for senior managers of securities and equity fund managers, including the work experience of the legal representative/executive partner, the performance of senior managers in charge of investment, and the specific requirements for the person in charge of compliance and risk control. Matters such as the quiet period, part-time jobs of senior executives and no affiliation are clarified.
02
Relevant rules for practitioners of private equity funds
1."Measures for the Supervision and Administration of Directors, Supervisors, Senior Managers and Practitioners of Securities and Fund Management Institutions"
On February 18, 2022, the China Securities Regulatory Commission announced the "Measures for the Supervision and Administration of Directors, Supervisors, Senior Managers, and Practitioners of Securities Fund Management Institutions" (hereinafter referred to as the "Administrative Measures"). The "Administrative Measures" will come into effect on April 1, 2022, and a one-year transition period will be given to those who do not meet the corresponding employment and employment conditions. The main contents of the "Administrative Measures" include:
(1) Optimizing personnel management in accordance with the principle of classification. According to the new "Securities Law" and other laws and regulations, the pre-approval of directors, supervisors and senior managers has been adjusted to post-filing management. be refined. The agency dispatched by the China Securities Regulatory Commission shall conduct an ex-post verification of the conditions of the employed person, and if the conditions are not met, the operating agency shall be replaced. Differentiate personnel positions and responsibilities, and classify and manage directors, supervisors, heads of branches, and general practitioners.
(2) Strengthen practice standards and implement the "zero tolerance" requirement. Clarify the basic principles such as diligence, fair competition, safeguarding the interests of customers, and integrity and self-discipline that industry personnel should follow in performing their duties, and list the bottom line requirements and prohibited behaviors. Detailed institutional arrangements for taking administrative supervision measures and administrative penalties for violations of laws and regulations by business organizations and personnel. Improve regulatory agencies, industry associations regulatory data and information sharing mechanisms, as well as the basic employment information of practitioners, credit record publicity system, and strengthen reputation constraints.
(3) Consolidate the main responsibility of the operating organization and lay a solid foundation for the development of the industry. The main responsibility for personnel management of operating institutions is constructed from the three aspects of job inspection, duty performance supervision, and assessment and accountability. Establish and improve the internal control mechanism for personnel appointment and practice management, strengthen compliance and risk management, build a long-term and reasonable salary management system, improve investment behavior management, conflict of interest management and clean employment system, and strengthen the endogenous restraint mechanism. Continue to improve the moral standard, professional ability, compliance risk awareness and honest practice level of personnel, and cultivate a compliance, integrity, professional and stable industry culture. At the same time, the relevant executives and practitioners engaged in the securities fund business of subsidiaries of operating institutions and securities fund service institutions are included in the supervision to achieve full coverage of supervision.
2."Announcement on Matters Concerning Overseas Fund Professionals' Application for Fund Practicing Qualifications"
On February 18, 2022, the Association issued the "Announcement on Matters Concerning Overseas Fund Professionals Applying for Fund Practice Qualifications", which clarified the procedural arrangements for overseas fund professionals to practice. Overseas professionals employed by fund managers, fund custodians or fund service agencies in Beijing, Shanghai, Hainan Province, Chongqing, Hangzhou, Guangzhou, and Shenzhen, and engaged in fund business activities in the above-mentioned areas, Those who already have the relevant overseas fund qualifications do not need to take the professional knowledge examination, but only need to pass the "Fund Laws and Regulations, Professional Ethics and Business Standards" examination organized by the association in China to apply for the registered fund qualification. In addition, the "Announcement" clarifies the conditions and procedures for overseas fund professionals to apply for fund practice qualifications.
3."Announcement on Expanding the Implementation Scope of Fund Practicing Qualification Recognition for Overseas Fund Professionals"
On August 26, 2022, the Association issued the "Announcement on Expanding the Implementation Scope of Fund Professional Qualification Approval for Overseas Fund Professionals", stating that the implementation scope of overseas fund professional talents applying for fund professional qualification accreditation is in Beijing, Shanghai, Hainan Province, On the basis of Chongqing, Hangzhou, Guangzhou, and Shenzhen, China (Tianjin) Pilot Free Trade Zone, China (Jiangsu) Pilot Free Trade Zone, China (Shandong) Pilot Free Trade Zone, Chengdu-Chongqing Economic Circle, China (Yunnan) Pilot Free Trade Zone (hereinafter referred to as the "implementation area"). For the application conditions for overseas fund professionals and the application procedures for overseas fund professionals, please refer to the "Announcement on Matters Concerning Overseas Fund Professionals Applying for Fund Professional Qualifications" issued by the Association in February 2022 (China Foundation Association [2022] No. 3).
4."Fund Practitioners Management Rules"
On May 10, 2022, the Association issued the "Rules for the Management of Fund Practitioners" (the "Rules") and the "Regulations on Matters Concerning the Implementation of the "Rules for the Management of Fund Practitioners", which will be implemented on the same day. The "Management Rules" include general principles, acquisition of professional qualifications, management responsibilities of fund industry institutions, codes of practice, self-discipline management, and six chapters with a total of 42 articles. Specifically, the rules clarify the specific scope of qualification management, achieving full coverage of operating institutions engaged in fund business activities; stipulate the registration conditions for obtaining qualifications, including morality, qualification examinations (some of which can be exempted if certain conditions are met) Subject examinations, in addition, within two years after passing the special training of the association and being recognized as qualified, it is deemed to have passed the qualification examination), the conditions of agency employment, etc., and the fact that there has been no crime in recent years, has been revoked/cancelled the fund practitioner qualification, and has been adopted Prohibit entry measures and have not yet expired, etc.; sort out the qualification management content (including qualification registration/information change, follow-up vocational training management, integrity information management, and qualification cancellation, etc.), and urge institutions to perform the main responsibility of qualification management; emphasize that practitioners should To abide by the professional code of conduct, practitioners should adhere to the obligations of loyalty, prudence, law-abiding, conflict of interest management, information disclosure, appropriateness, fair competition, and confidentiality; implement the self-discipline management responsibilities of the association, and the "Management Rules" also stipulates that the association The function of inspecting the implementation of the qualification management of institutions and practitioners. If an institution or practitioner is investigated or inspected by the relevant agency due to suspected violations of laws and disciplines, the Association may suspend the acceptance of matters related to the management of its qualifications. Institutions and practitioners who violate the rules , the association may take disciplinary action against institutions and practitioners.
The "Regulations on Matters Concerning the Implementation of the "Rules for the Management of Fund Practitioners" stipulates the examinations that practitioners of different types of private equity fund management business should pass. For private equity funds, practitioners engaged in private equity asset management of securities and futures operating institutions (excluding equity), securities private equity fund management, fund custody, and various securities fund service businesses shall pass the "Fund Laws and Regulations, Professional Ethics and Business Standards" and "Basic Knowledge of Securities Investment Funds" exams. Practitioners engaged in the management of various non-securities private equity funds should pass the "Fund Laws and Regulations, Professional Ethics and Business Standards" and "Securities Investment Fund Basic Knowledge" or "Fund Laws and Regulations, Professional Ethics and Business Standards" and "Fund Laws and Regulations, Professional Ethics and Business Standards" Fundamentals of Private Equity Funds". Those who pass the examination of "Fund Laws and Regulations, Professional Ethics and Business Standards" and meet certain conditions can be deemed to meet the requirements for registration of fund practitioner qualifications. In addition, the association recognizes the "Securities Investment Fund", "Securities Market Basic Knowledge", "Securities Investment Fund Sales Basics" and "Securities Issuance and Underwriting" organized by the Securities Association of China (only for senior managers of private equity investment and venture capital fund managers). If you pass the relevant subject examinations, you should complete no less than 30 hours of follow-up vocational training or re-pass the professional qualification examination within two years before registration .
03
Registration and filing cases and typical arbitration cases
1."Public Fund Manager Registration Case Publicity (Phase 1, 2022, Phase 1)"
On April 15, 2022, the Association issued the "Notice on Publication of Registration Cases of Private Equity Fund Managers", stating that in order to guide private equity fund managers to standardize their registration, the Association sorted out some cases that did not meet the registration requirements of managers and notified them. Update these typical cases in due course. The registration cases of administrators announced this time are divided into two situations: suspension of processing and non-registration, with a total of six cases. According to the "Registration Notice for Private Equity Fund Managers" ("Registration Notice"), if the applicant institution encounters two or more situations listed in Article 8 of the "Registration Notice", the Association will suspend the private placement of this type of institution Fund manager registration application for 6 months. The violations involved in this case publicity mainly focus on items (6), (7), (8), (9) and (11) of Article 8 of the "Registration Notice", including: Clear; the actual control relationship of the applicant institution is unstable; the applicant institution evades the requirements of related parties or actual controllers through structural arrangements; the employees and executives of the applicant institution are affiliated, or the professional competence is insufficient; the applicant institution has not submitted the registration materials for the second time Checklist to submit required materials or information. The non-registration violations involved in this case publicity are mainly concentrated in Article 9 (2) of the "Registration Notice", that is: the application institution provides, or the application institution and law firm, accounting firm or other third-party The three-party intermediary agencies conspire to provide false registration information or materials; the registration information or materials provided contain misleading statements and major omissions.
Combined with this publicity case, we understand that the association attaches great importance to the "five characteristics" of the applicant organization, namely: the authenticity of the exhibition needs, the adequacy of the exhibition conditions, and the authenticity, accuracy and completeness of the submitted information. In addition, for the review of the actual controller and related parties of the applicant institution, the Association mainly focuses on whether the equity structure is clear, whether the actual controller has actual dominance, and whether there are arrangements such as equity holdings and concerted action agreements to avoid the identification of related parties, etc. Judge compliance.
2."Public Fund Filing Case Publicity (Phase 1, 2022)"
On April 18, 2022, the Association issued the "Notice on Publication of Private Equity Fund Filing Cases", stating that the association recently summarized and sorted out the content of the second batch of private equity fund filing case announcements based on new situations and new problems in private equity fund filing. The second batch of cases include the provision of "extracted pages" filing materials, filing of "shell funds", non-compliance with the fundraising supervision agreement, weak relationship between the general partner and the manager, mismatched fund investment period, and transfer of investment decision-making power by the manager. "Channel" has six situations. in particular:
(1) Provide "extracted pages" filing materials: a small number of managers provided false materials during the filing process, and amended the partnership agreement without letting investors know and get their consent, which violated the "private equity fund filing materials should be true, accurate, Complete, without any false records and misleading statements".
(2) Filing of "shell funds": Some securities fund managers have the behavior of filing "shell funds", that is, the manager submits a batch of fund filing applications in which multiple investors are the same person at the same time and the paid-in amount is extremely low. Fund shares will be redeemed in a short period of time after the fund's filing is approved, and then management talents will start to recruit real investors. According to the "Instructions for Filing of Private Equity Investment Funds" ("Instructions for Filing"), the manager should apply for fund filing after the fundraising is completed, and sign a filing commitment letter to promise that the fundraising has been completed. Therefore, the filing of "shell funds" violated the requirements of the "Filing Notice".
(3) Non-compliance with the fundraising supervision agreement: Manager A submits a filing application for Fund B, and the manager signs a tripartite supervision agreement on fundraising with the fundraising supervisory agency, which clearly states that the manager and the fundraising supervisory agency will jointly abide by relevant laws and regulations. and the "Administrative Measures for the Raising Behavior of Private Equity Investment Funds" ("Raising Measures"). In addition, the agreement stipulates that the fundraising supervisory agency only undertakes the obligations of formal review, issuance of account statements, notification, and cooperation in investigations that are clearly stipulated in the agreement. According to the provisions of the "Raising Measures", the fundraising supervision agreement should specify the control over the special account for the fundraising and settlement funds, the division of responsibilities, and the terms to ensure the safety of fund transfers. Effectively supervise and undertake joint and several responsibilities for ensuring the safety of transfer of fund raising and settlement funds.
(4) The relationship between GP and the manager is weak: Manager A submits a filing application for Fund B, the GP of Fund is C, and Ms. D, the investor (controlling shareholder) of C, is the person in charge of A’s liquidation department. According to the requirements of the association, if the GP of a partnership private equity fund is separated from the manager, there should be an associated relationship. Affiliated relationship here means that one party controls, jointly controls or exerts significant influence on the other party, and two or more parties are under the same control, joint control or significant influence of one party. In addition, if the manager's senior management team/actual controller/legal representative is the investor of the GP, it can also be determined that the GP and the manager have an associated relationship.
(5) Fund investment period mismatch: Manager A submits a filing application for Fund B, and the fund maturity date is March 2030. One of the investors of Fund B is the registered Fund C, and the maturity date of Fund C is December 2024, which is earlier than the maturity date of Fund B. According to the provisions of the "Filing Instructions", the administrator must not have violations such as time limit mismatch. Therefore, when private equity/venture capital funds invest in other closed-end asset management products (including private equity funds), they should adhere to the principle of matching funds and investors, and pay attention to whether the duration of the fund covers the duration of the investment management products.
(6) The transfer of investment decision-making power by the manager becomes a "channel": Manager A submits a filing application for Fund B, and the fund has a dual executive partner structure, namely A and unregistered institution C. According to the division of responsibilities in the partnership agreement, C is responsible for appointing members of the investment committee, formulating the rules of procedure for the investment committee, screening investment projects and conducting post-investment management. C also charges part of the fund management fee. According to the relevant provisions of the "Several Provisions on Strengthening the Supervision of Private Equity Investment Funds" and "Instructions for Filing", any unit without registration shall not conduct private equity fund business activities, and the manager shall not delegate the entrusted responsibilities that should be performed. In this case, C is not a registered manager, but the partnership agreement stipulates that C "actually controls" the investment committee of the fund, which is equivalent to "substantial" management of the fund, and A delegates the entrusted responsibility that should be performed, becoming The "channel" for unregistered institutions to carry out private equity business violates the requirements of the aforementioned regulations. In addition, according to regulations, except for the manager, other executive partners are not allowed to charge relevant fees in the name of "fund management fees".
3."Private Fund Filing Case Publicity" (2022 Issue 2, Total Issue 3)
On September 16, 2022, the association released the second issue of this year's "Private Fund Filing Case Publicity". The third batch of publicity cases. A total of 3 types of cases were released this time, involving four situations:
The first category of cases involves investors who do not have the ability to make actual capital contributions, that is, as an investor’s collective fund trust plan, there is a situation of “preparation first and then fundraising”. Submit the filing application for private equity funds after the fundraising is completed and you have the ability to make paid-in capital contributions;
The second type of case involves regulatory arbitrage by private equity funds, that is, a securities company’s asset management plan uses private equity funds as a “channel” to invest 100% in restricted snowball structured products, and the association has not filed for the private equity fund ;
The third category of cases involves private equity fund managers and “black intermediaries” jointly conducting illegal business. There are two situations:
(1) The first situation is that the fund manager entrusts a "black intermediary" to distribute the "shell" fund in violation of regulations, that is, in order to meet the requirements for filing the first private equity fund within a time limit after registration, the fund manager entrusts an intermediary agency with full authority to provide the first private equity fund For the filing "shell" service, the intermediary agency raises, operates, and manages the first private equity fund in the name of the fund manager, and uses the account number and password provided by the fund manager to submit the fund filing application. Take self-discipline measures, suspend the filing business, and transfer clues of violations to the regulatory agency;
(2) The second situation is that the fund manager uses the "black intermediary" to make false capital contributions to "occupy pits", that is, the fund manager uses the affiliated parties of the intermediary organization to make false capital subscriptions in order to save time for fundraising, and after passing the record, the subscribed shares The transfer to real investors violated the requirements of the "Instructions for Filing of Private Equity Investment Funds". The association has taken self-discipline measures against the fund managers involved and transferred relevant clues of violations to the regulatory agency.
4."Typical Cases of Fund Arbitration"
In May 2022, the Association released six "Typical Cases of Fund Arbitration" and stated that the Association and the arbitration institution jointly selected a batch of arbitration cases with typical significance and reference value, and guided the industry through case-by-case analysis and analysis. Abiding by laws and regulations, sticking to the bottom line of faith, reminding investors to protect their rights rationally in accordance with the law, effectively safeguarding the legitimate rights and interests of investors, and continuously promoting the high-quality development of the fund industry. Specifically, the arbitral awards of these six typical cases involved: the failure of the private equity fund manager to invest within the agreed investment scope may constitute a fundamental breach of contract; ; Investors provide false asset certificates by themselves, and it is inappropriate to claim that the manager has not fulfilled the suitability obligation; the private equity fund fails to recover all the funds when it expires, and the fund manager only distributes to some investors of the same fund, which constitutes a breach of contract; changing the investment target is a breach of contract; The major matters that should be disclosed by the fund manager; and in the event that the executive partner fails to initiate arbitration against the debtor of the partnership enterprise, the non-executive partner has the right to file a derivative lawsuit in his own name.
04
Investor protection
"Questions and Answers Handbook for Investor Protection of Private Equity Funds"
On November 11, 2022, the Shanghai Regulatory Bureau of the China Securities Regulatory Commission (“Shanghai Securities Regulatory Bureau”) released the “Questions and Answers Manual for Investor Protection of Private Equity Funds” on how to obtain information on private equity fund managers, how to distinguish between true and false private equity, risky private equity, and how to Remind investors of matters such as rights protection. Information about private equity fund managers can be queried through the "Private Equity Fund Manager Classified Query Publicity" of the "Information Bulletin Board - Institutional Publicity" on the AMAC website. Regarding the quality of private equity funds, investors should focus on institutional and personnel information, integrity status, and whether there are any abnormalities through channels such as the information disclosure of the Asset Management Association and the China Executive Information Disclosure Network. In addition, private equity funds should pay attention to media channels and promotion behaviors when promoting them, adopt methods such as questionnaire surveys to perform specific procedures for specific objects, and fulfill investor suitability obligations. Moreover, the fund contract should stipulate that investors should have a cooling-off period of not less than 24 hours, and investors should not be actively contacted during the cooling-off period. During the operation of a private equity fund, the information disclosure obligor shall also disclose information such as the net value of the fund, major financial indicators, and investment portfolio to investors within 10 working days from the end of each quarter. If the management scale of a single private equity fund reaches more than 50 million yuan, it shall continue to disclose the net value information of the fund to investors within 5 working days from the end of each month. At the same time, the Shanghai Securities Regulatory Bureau also issued the "Equity Fund Investment Manual" (before investment, during investment, during holding).
05
Other Important Reports and Rules
1."Administrative Measures for the Electronic Contract Business of Private Equity Investment Funds (Trial Implementation)"
On June 2, 2022, the Association issued the "Administrative Measures for the Electronic Contract Business of Private Equity Funds (Trial)" ("the "Electronic Contract Management Measures"). The Measures have five chapters and a total of 36 articles, including general provisions, registration of electronic contract business service agencies, business norms, self-regulatory management and supplementary provisions. in particular:
(1) General provisions: stipulates the definition and connotation of electronic contracts, the applicable objects of the Measures, the due diligence of private equity fund parties on electronic contract business service agencies, and the publicity and membership of electronic contract business service agencies;
(2) Registration of electronic contract business service agencies: stipulates the registration requirements (i.e., various conditions that must be met) and the relevant registration materials that should be submitted for electronic contract service agencies. These requirements include paid-in capital, corporate governance, legal compliance , organizational structure, service experience, executive qualifications, network security, system docking, and fault response;
(3) Business specifications: stipulates the business content of electronic contracts, the essential terms of the electronic contract business service agreement, and various obligations that electronic contract business service agencies should perform (including carrying out investor identification, prudently selecting and regularly evaluating electronic certification services; The provider shall store the key data in ciphertext, use the cryptographic algorithm approved by the national cryptography authority, adopt the time stamp approved by the National Time Service Center, carry out the annual overall evaluation, submit and store the information to the association, conduct annual audit, etc.) ;
(4) Self-discipline management: including the association's self-discipline inspection and continuous evaluation, as well as the self-discipline measures and various penalties that electronic contract business service organizations will suffer if they violate the regulations.
2."Measures for the Implementation of Self-Regulatory Management and Disciplinary Measures of the Asset Management Association of China"
The association issued the "Measures for the Implementation of Self-Discipline Management and Disciplinary Measures of the Asset Management Association of China" on December 30, 2022. The implementation measures are divided into general principles, types of measures, discretionary factors, implementation procedures, review of disciplinary actions, service, recusal and publicity, and supplementary rules, totaling seven chapters and 49 articles. It is worth mentioning that nearly half of the provisions (Articles 17 to 38, a total of 22) are used in the Implementation Measures to focus on the implementation procedures. Specifically, the implementation procedures are divided into three subsections: filing and inspection, implementation procedures of self-regulatory management measures, and implementation procedures of disciplinary measures. The subsection of case filing and inspection stipulates the source of clues of violations, conditions for filing a case, handling results, and circumstances where the case filing procedure is not applicable. The section on the implementation procedures of self-regulatory management measures introduces several self-regulatory management measures, including: talking reminders, written warnings, requiring corrections within a time limit, increasing the number of internal compliance inspections, and requiring participation in compliance education and other measures. The implementation procedure of disciplinary action measures specifies the main content that should be stated in the prior notice of disciplinary action, the relief rights of the subject of self-regulatory management (the right to appeal, the right to hold a hearing, and the hearing procedure), and the main content that should be included in the disciplinary action decision letter. content etc.
3."Green Investment Self-Assessment Report of Fund Managers (2021)"
On March 18, 2022, the Association released the "Green Investment Self-Assessment Report of Fund Managers (2021)". The report is based on the analysis by sample institutions of the third self-assessment survey conducted by the Association for asset management member institutions in August 2021, mainly from the construction of the green investment system of public fund management companies, the green investment of private securities investment fund managers The system construction situation and the green investment system construction situation of private equity venture capital fund managers start from three aspects. The report pointed out that most private securities investment fund managers are still in the exploratory stage of green investment research in the construction of a green investment system, and a small number of institutions have carried out active practice, which has an increasing trend compared with 2020. Private equity venture capital fund managers show similar characteristics, but the number of institutions carrying out practices has increased significantly compared with 2020, and they are outstanding in taking proactive measures to promote the green performance of invested companies. About half of green investment products will After that, it actively intervened in the invested companies to help green transformation.
4."Green Investment Self-Assessment Report of Fund Managers (2022)"
The Association released the "Green Investment Self-Assessment Report of Fund Managers (2022)" on December 13, 2022, stating that in July 2021, in accordance with the requirements of the "Green Investment Guidelines (Trial)", the Association launched the first asset management member institutions. Four self-assessment surveys. A total of 712 valid samples were obtained in this self-assessment survey. Among them, 320 valid questionnaires from private equity fund managers and 327 valid questionnaires from private equity fund managers were received. As far as private equity fund managers are concerned, in terms of green investment strategy management, 55 institutions have incorporated "green investment" into their corporate strategies, of which 31 institutions disclosed green investment strategies to investors; in terms of green investment system construction, 23 10 institutions indicated that they have the capabilities of green investment research, green performance evaluation, and environmental risk monitoring and disposal; in terms of green investment product operation, 10 institutions issued a total of 10 products targeting green investment. As far as private equity venture capital fund managers are concerned, in terms of green investment strategy management, 90 private equity institutions have explicitly incorporated "green investment" into their company strategies, of which 65 institutions disclosed to investors; in terms of green investment system construction , 214 private equity institutions conducted green investment research, 55, 36 and 22 respectively established positive, negative and "positive + negative" green performance evaluation methods, and 65, 70 and 39 established environmental Risk monitoring mechanism, emergency response mechanism and "monitoring + emergency response" mechanism; in terms of green investment product operation, 44 private equity institutions have issued a total of 70 products targeting green investment.
06
Important local regulations
1."Guidelines for the Evaluation and Management of Shares of Private Equity and Venture Capital Funds of State-owned Enterprises in Shanghai (Trial Implementation)"
In order to strengthen the evaluation and supervision of state-owned assets and standardize the evaluation and management of private equity and venture capital fund shares of state-owned enterprises in Shanghai, the Shanghai State-owned Assets Supervision and Administration Commission issued the "Shanghai State-owned Enterprise Private Equity and Venture Capital Fund Share Evaluation Management" on June 28, 2022. Work Guidelines (Trial) ("Work Guidelines"), which will be implemented on a trial basis from 1 July 2022.
The full text of the work guidelines consists of 18 articles, covering the scope of application, the filing process of state-owned fund share evaluation projects, the annex to the state-owned fund share evaluation report, the review focus of the state-owned fund share evaluation report, the expert review mechanism of state-owned fund share evaluation projects, and the evaluation of state-owned fund share projects. Publicity before filing, and the handling methods of relevant entities violating the work guidelines, etc. This work guideline fills the policy gap in the assessment and management of state-owned fund shares, and helps state-owned fund exit through share transfer.
2."Interim Measures of Hainan Province on Conducting Domestic Equity Investment by Qualified Foreign Limited Partners (QFLP)"
On October 27, 2022, the Hainan Province Local Financial Supervision and Administration Bureau issued a notice stating that according to the "Interim Measures of Hainan Province on the Development of Domestic Equity Investment by Qualified Foreign Limited Partners (QFLP)" (Qiong Jin Jian Han [2020] No. 186) relevant It stipulates that for foreign-invested equity investment enterprises established in Hainan Province that only involve raising funds overseas, the province does not make mandatory requirements for them to file with the Asset Management Association of China. Banks can support such enterprises in cross-border fund settlement and other businesses, and do a good job in follow-up fund supervision. Other requirements remain unchanged in accordance with the current system.
Author
Lawyer Yang Chunbao
First class lawyer
Senior Partner of Dentons (Shanghai) Law Firm
Mail:chambers.yang@dentons.cn
The leader of the private equity and investment fund professional group and the TMT industry group leader of Beijing Dentons (Shanghai) Law Firm, the deputy director of the Dentons China Technology, Culture, Leisure and Entertainment Professional Committee, and a member of the Shanghai foreign-related legal talent pool. Bachelor of Laws from Fudan University (1992), Master of Laws from University of Technology Sydney (2001), Master of Laws from East China University of Political Science and Law (2001).
Lawyer Yang has been practicing for 27 years, and has long been engaged in private equity funds, investment and financing, and M&A legal services, covering TMT, big finance, big health, real estate and infrastructure, exhibition industry, manufacturing and other industries. Since 2004, he has been specially recommended or commented by The Legal 500 and Asia Law Profiles for many times. Since 2016, he has been continuously selected as one of the "100 outstanding lawyers in China" by the internationally renowned legal media China Business Law Journal, and won the "Leaders in Law - 2021 Global Awards" He has won the title of "China Company Law Expert of the Year" and has won the "China TMT Lawyer Award" and "China M&A Lawyer Award" from Lawyer Monthly and Finance Monthly for many times. He is qualified as an independent director of a listed company. He is a part-time professor of the Law School of East China University of Science and Technology, a part-time tutor of the Law School of Fudan University, a part-time postgraduate tutor of East China University of Political Science and Law, a lecturer of the private equity president class of Shanghai Jiaotong University, and a lecturer of the transnational management talent training class of the Shanghai Municipal Commission of Commerce. Published 16 monographs including "Practical Operation and Case Analysis of Enterprise Legal Risk Prevention and Control", "Winning Capital 2: Complete Operation Guide for the Company's Investment and Financing Model Process", "Practice of Risk Prevention and Control of Private Equity Investment Funds". Lawyer Yang's practice areas are: companies, investment mergers and acquisitions and private equity funds, capital markets, TMT, real estate and construction projects, as well as dispute resolution in the above fields.
Author
Lawyer Sun Zhen
Partner of Dentons (Shanghai) Law Firm
Mail:sun.zhen@dentons.cn
PE&TMT Lawbridge
Presiding lawyer: Yang Chunbao, first-class lawyer
Phone/WeChat: 1390 182 6830
Business contact and submission email:
chambers.yang@dentons.cn
Address: Floor 9/24/25, Shanghai World Financial Center, 100 Century Avenue, Shanghai
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