Dentons Hong Kong

On 17 February 2023, the China Securities Regulatory Commission (CSRC) announced the new regulations for the filing-based administration of overseas securities offering and listing by domestic companies, which are set to take effect on 31 March 2023. The new measures comprised six documents, including the "Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies" (境内企业境外发行证券和上市管理试行办法) (the Trial Measures) and five supporting guidelines. The Trial Measures regulate the system, filing management and other related rules in respect of direct or indirect overseas issuance of securities by PRC enterprises and PRC enterprises with overseas parent entities and/or variable interest entity structures, which are referred to as "domestic enterprise(s)" in this article. We set out below some of the key changes and implications to Hong Kong market participants.

The recent case of Stanford International Bank Ltd (In Liquidation) (Appellant) (SIB) v. HSBC Bank PLC (Respondent) (HSBC)[1] confirms that a bank only owes its customers a Quincecare duty (i.e. an implied term and a co-extensive duty of care owed by the bank to its customer to refrain from making or executing a payment when the bank is put on inquiry that a payment instruction from its customer may be a result of fraud) and such duty does not extend to creditors of its customers. This UK Supreme Court case considered the question of whether, under a Quincecare duty, the Liquidators of SIB could recover damages from HSBC for the loss of chance suffered in respect of payments made to the early subscribers of a Ponzi scheme, who successfully withdrew their funds in full and escaped without loss (earlier customers) despite SIB’s insolvency and to the detriment of subscribers who were subsequently unable to withdraw their funds and suffered loss (later customers).

In the continuing “mainstreaming” of the importance of corporate environmental, social and governance (ESG) performance, let us focus on “G” as we start the new year.   Hong Kong is one of the earliest jurisdictions to have introduced ESG reporting of listed companies, and the requirements have undergone several rounds of updates since the first iteration in 2013.  Under the revised ESG Reporting Guide issued in July 2020, a key enhancement is the focus on board governance and oversight of ESG issues.  The enhanced ESG disclosure framework requires mandatory reporting on the board’s engagement and oversight on ESG matters and “comply or explain” disclosure on four environmental aspects and eight social aspects; and in relation to each aspect to cover (a) general disclosures on the issuer’s policies and/or compliance with laws and regulations (as applicable), and (b) key performance indicators (KPIs). 

On 28 October 2022, Hong Kong introduced into the Legislative Council for review the Inland Revenue (Amendment) Taxation of Specified Foreign-sourced Income Bill 2022 (the Foreign-sourced Income Amendment Bill), which renders certain specified categories of foreign-sourced income subject to Hong Kong profits tax liability. With the Legislative Council’s passing on 14 December 2022, the Inland Revenue (Amendment) (Taxation on Specified Foreign-sourced Income) Ordinance 2022 (the Foreign-sourced Income Amendment Ordinance) took effect on 1 January 2023 and has brought about significant changes to Hong Kong’s long-standing territorial source basis of taxation, applying tax on specified foreign-sourced income received in Hong Kong with the stated objective of addressing “double non-taxation”.

Following the successful launch of the biotech listing regime, the Hong Kong Stock Exchange (HKEx) issued a Consultation Paper on New Listing Rules for Specialist Technology Companies in October 2022, which proposes to lower the bar for innovative technology enterprises with high growth potential that seek to list on the HKEx. 

In a recent decision of the Hong Kong Court of Appeal in Breton Jean v. 香港麗翔公務航空有限公司[1], the Court of Appeal upheld the decision of the District Court in its findings pertaining to what constitutes a "rest day" for employees.

Dentons has represented Gaoyou City Construction Investment Development Group, a leading state-owned infrastructure construction company principally engaged in the construction of municipal infrastructure, water facilities, roads, environmental governance-related facilities and shantytown redevelopment projects in Gaoyou City and Suzhou City, in its global offering under Regulation S of its English law governed €75 million 4.60 per cent. Credit Enhanced Bonds due 2026, with the benefit of an irrevocable Standby Letter of Credit issued by Bank of Jiangsu Co., Ltd., Yangzhou Branch, underwritten by China Industrial Securities International, Industrial Bank of Co. Ltd., Hong Kong Branch, Shanghai Pudong Development Bank, Hong Kong Branch, China Minsheng Banking Corp., Ltd., Hong Kong Branch, CEB International, Guotai Junan International, Guosen Securities (HK), Central Wealth Securities Investment Limited, CNCB Capital, CITIC Securities, CMBC Capital, China International Capital Corporation and Caitong International.