Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises

Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises

Announcement of the China Securities Regulatory Commission
(No. 43 [2023])

With approval of the State Council, the Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises are hereby issued, and shall come into force on the March 31, 2023.

China Securities Regulatory Commission

February 17, 2023

Annex 1: Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises

Annex 2:Notes on the Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises

Interim Measures for the Administration of Overseas Securities Offering and Listing by Domestic Enterprises

Chapter I General Provisions

Article 1 These Measures are developed in accordance with the Securities Law of the People's Republic of China and other laws for the purposes of regulating the relevant activities of direct or indirect overseas securities offering and listing by enterprises in the territory of the People's Republic of China (hereinafter referred to as “overseas offering and listing”), and promoting the standardized and sound development of domestic enterprises by utilizing overseas capital markets in accordance with laws and regulations.

Article 2 Direct overseas offering and listing by a domestic enterprise refers to overseas offering and listing by a joint-stock company registered and formed in China.

Indirect overseas offering and listing by a domestic enterprise refers to overseas offering and listing by an enterprise in the name of an overseas registered company, whereas the enterprise's main business activities are in China and such offering and listing is based on the equity, assets, earnings or other similar rights and interests of a domestic enterprise.

For the purposes of these Measures, the term “securities” refers to the stocks, depositary receipts, corporate bonds convertible into stocks or other equity securities that are directly or indirectly offered and listed overseas by domestic enterprises.

Article 3 Domestic enterprises shall comply with laws, administrative regulations and relevant rules of the state on foreign investment, state-owned asset management, industrial regulation, and overseas investment in their overseas offering and listing activities, and shall not disturb the domestic market order, or harm state or public interest or the legitimate rights and interests of domestic investors.

Article 4 The supervision and administration of overseas offering and listing activities of domestic enterprises shall comply with the lines, principles, policies, decisions and arrangements of the Party and the state, and coordinate the development and security.

The China Securities Regulatory Commission (“CSRC”) shall, in accordance with law, exercise supervision and administration over the overseas offering and listing activities of domestic enterprises. The CSRC and the relevant competent department under the State Council shall, within the scope of their respective functions and duties and according to the law, exercise supervision and administration over domestic enterprises conducting overseas offering and listing as well as securities companies and securities service institutions that provide corresponding domestic services for them.

The CSRC shall, in conjunction with the relevant competent department under the State Council, establish a supervision and administration coordination mechanism for overseas offering and listing by domestic enterprises, to strengthen the coherence between policies and rules, supervision and administration coordination and information sharing.

Article 5 The CSRC and the relevant competent department under the State Council shall, under the principle of reciprocity, strengthen cooperation in supervision and administration with overseas securities regulatory institutions and relevant competent departments to implement cross-border supervision and administration.

Chapter II Overseas Offering and Listing

Article 6 Domestic enterprises conducting overseas offering and listing shall, in accordance with the Company Law of the People's Republic of China, the Accounting Law of the People's Republic of China and other laws, administrative regulations and relevant rules of the state, develop bylaws, improve the internal control system, and standardize corporate governance and financial and accounting behaviors.

Article 7 Domestic enterprises conducting overseas offering and listing shall comply with the legal system of the state for confidentiality, and take necessary measures to fulfill the confidentiality responsibility, and shall not disclose state secrets or work secrets of state organs.

Where a domestic enterprise's overseas offering and listing involves provision of personal information and important data to overseas parties, it shall comply with the laws, administrative regulations and relevant rules of the state.

Article 8 No overseas offering and listing shall be conducted under any of the following circumstances:

(1) Financing through listing is expressly prohibited by laws, administrative regulations or relevant rules of the state.

(2) The overseas offering and listing may endanger national security as determined by the relevant competent department under the State Council after examination according to the law.

(3) A domestic enterprise or its controlling shareholder or actual controller has committed a criminal crime of corruption, bribery, embezzlement, misappropriation of property or disrupting the economic order of the socialist market in the last three years.

(4) A domestic enterprise is under formal investigation according to the law for being suspected of any crime or major violation of laws and regulations, but no clear conclusions have been made.

(5) There is a major dispute over ownership of the equity held by the controlling shareholder or a shareholder controlled by the controlling shareholder or the actual controller.

Article 9 In the overseas offering and listing activities, domestic enterprises shall strictly comply with the laws, administrative regulations and relevant rules of the state on national security in such aspects as foreign investment, network security, and data security, and effectively fulfill the obligation of safeguarding national security. Where safety review is involved, relevant safety review procedures shall be undergone according to the law before an application for offering and listing is filed with an overseas securities regulatory institution or trading venue.

Domestic enterprises conducting overseas offering and listing shall, in accordance with the requirements of the relevant competent department under the State Council, take such measures as timely rectification, undertaking and divestiture of business assets to eliminate or avoid the impact of overseas offering and listing on national security.

Article 10 Target investors of overseas offering and listing by a domestic enterprise shall be overseas investors, except as compliance with the provisions of paragraph 2 of this article or otherwise prescribed by the state.

A domestic enterprise directly conducting overseas offering and listing that implements equity incentive or purchases assets by offering securities may offer securities to specific domestic investors that meet the requirements of the CSRC.

A domestic state-owned enterprise offering securities to specific domestic investors in accordance with the provisions of the preceding paragraph shall comply with the relevant provisions on the administration of state-owned assets.

Article 11 A domestic enterprise conducting overseas offering and listing may raise funds and pay dividends in a foreign currency or RMB.

The use and investment of the funds raised by a domestic enterprise by offering securities overseas shall comply with laws, administrative regulations and relevant rules of the state.

The exchange and cross-border flow of funds related to overseas offering and listing by domestic enterprises shall comply with the rules of the state on cross-border investment and financing, foreign exchange administration and cross-border RMB administration, among others.

Article 12 Securities companies, securities service institutions and personnel engaged in the business of overseas offering and listing by domestic enterprises shall comply with the laws, administrative regulations and relevant rules of the state, follow the business standards and ethical norms recognized in the industry, strictly perform legal duties, and ensure the authenticity, accuracy and completeness of the documents they produce and issue, and shall not, in the documents they produce or issue, make any comments in a manner that distorts or derogates the laws and policies of the state, the business environment and the judicial situation, among others.

Chapter III Requirements for Recordation

Article 13 A domestic enterprise conducting overseas offering and listing shall, in accordance with these Measures, undergo the recordation formalities with the CSRC, submit the recordation report, legal opinions and other relevant materials, and truthfully, accurately and completely explain the information on shareholders.

Article 14 Where a domestic enterprise directly conducts overseas offering and listing, the issuer shall undergo the recordation formalities with the CSRC.

Where a domestic enterprise indirectly conducts overseas offering and listing, the issuer shall designate a major domestic operating entity as the domestic responsible person who shall undergo the recordation formalities with the CSRC.

Article 15 Any overseas offering and listing conducted by an issuer that concurrently meets the following conditions shall be determined as indirect overseas offering and listing by a domestic enterprise:

(1) Among the operating revenue, total profits, total assets or net assets of the domestic enterprise in the most recent fiscal year, any index accounts for over 50% of the relevant data in the audited consolidated financial statements of the issuer for the same period.

(2) The main parts of the business activities of the issuer are carried out in China or the main business places are located in China, or most of the senior executives in charge of business operation are Chinese citizens, or their habitual residences are located in China.

The determination of indirect overseas offering and listing by domestic enterprises shall follow the principle of substance over form.

Article 16 An issuer conducting overseas initial public offering or listing shall undergo the recordation formalities with the CSRC within three working days after the application documents for offering and listing are submitted overseas.

Where an issuer offers securities in the same overseas market after overseas offering and listing, it shall undergo the recordation formalities with the CSRC within three working days after completion of offering.

An issuer that conducts offering and listing in other overseas markets after conducting overseas offering and listing shall undergo the recordation formalities in accordance with the provi......