| As a financial instrument,depositary receipts have emerged because they can circumvent the restrictions on domestic companies’ overseas financing,which is no less than the financing capabilities of stocks and bonds,the international characteristics of communicating domestic and overseas capital markets,and the freely convertible basic securities.The expansion of investor investment channels and the relatively simple listing process have allowed it to flourish and grow rapidly in the US capital market with sufficient capital and tight supervision.China is impressed by the excellent performance of American Depositary Receipts in attracting high-quality overseas companies.In order to attract the return of overseas red-chip companies in China,it has created a Chinese Depositary Receipt.Chinese Depositary Receipts lay a solid foundation for advancing the internationalization of China’s financial market,encouraging the development of emerging technology companies,and practicing mass entrepreneurship and innovation.However,from its eager expectations before its introduction to the frequent cold weather after its introduction,it proves that China’s issuance of depositary receipts is still insufficiently prepared in many aspects,especially in dealing with risks.And hinder the purposeful practice of Chinese Depositary Receipts.As a transnational financial instrument,Chinese Depositary Receipts have unclear legal relationships that are the source of a series of related risks.At the same time,the contradiction between the strict foreign exchange management system in China’s financial market and the freedom of conversion of depositary receipts and basic securities It is also an obstacle to the future development of depositary receipts.The requirements for information disclosure in Chinese Depositary Receipts legislation are reflected in the issuance and subsequent transaction stages,but it will inevitably increase the burden on the underlying securities issuer to bear almost all of its disclosure obligations.A single information disclosure channel cannot give investors the most comprehensive information..The dispute over litigation jurisdiction caused by disputes related to depositary receipts is particularly important for investor protection and reasonable allocation of judicial resources.This article starts with the risks of Chinese Depositary Receipts,summarizes and summarizes the risks,and selects typical risks for analysis.It points out the deficiencies of China’s existing legal system against the risk of depositary receipts,and draws on American Depositary Receipts and Chinese Taiwan Depositary Receipts.Relying on relevant experience of vouchers to build a legal system for risk prevention and control.The specific arrangement of the article is as follows:The first part mainly discusses the operating mechanism of Chinese Depositary Receipts and the risks that may occur during the operation.Starting from the legal nature and legal relationship of Chinese Depositary Receipts,taking the operation process of depositary receipts as a clue,the Chinese Depositary Receipts are divided into basic legal risks,China based on the rationalization of the rights and obligations of relevant entities at home and abroad.Depositary receipt transaction risks and litigation risks.In the second part,according to the classification of risks,the main risks are explained in detail,including the legal relationship of the depositary receipts among the basic legal risks is unclear,the legal nature of the depositary agreement and the escrow agreement is unclear;Under the strict foreign exchange control of capital accounts,Chinese Depositary Receipts cannot be interconnected with domestic and overseas capital markets caused by the free exchange of basic securities,the basic securities and depositary receipts are split,Chinese Depositary Receipts have high price-earnings ratios,and speculative arbitrage;information disclosure and regulatory systems are not The unreasonable distribution of information disclosure obligations caused by the improvement,the asymmetry of information at home and abroad,and the difficulty of extraterritorial supervision;the jurisdictional standards in litigation risks are uncertain;the evidence collection and enforcement dilemma of extraterritorial jurisdictions.The third part analyzes the causes of risks and proposes prevention and control paths.Based on the analysis of the legal nature of the depositary agreement,it analyzes who the issuer of the depositary receipts is,and the distribution of responsibilities between the depositary and the issuer of the underlying securities,etc.,and opens a path for the exploration of the legal relationship of the depositary receipts;The reasons for China ’s foreign exchange control and the issue of depositary receipts under strict foreign exchange control are analyzed.The advantages and disadvantages of the pricing mechanism and arbitrage mechanism of Chinese Depositary Receipts are analyzed.The introduction of information disclosure and supervision of American Depositary Receipts discusses China.Principles and specific contents of depositary receipts supervision;failure to distinguish between disputes related to Chinese Depositary Receipts has resulted in expanded jurisdiction,and missing jurisdictional standards have led to jurisdictional disputes.The fourth part provides countermeasures to prevent and control risks,including clarifying the legal relationship of Chinese Depositary Receipts through legislation.It is a type of securities legal relationship,an extension of stock or bond legal relationship,and a new type of Securities legal relationship;gradually liberalize foreign exchange controls on capital accounts,establish a free RMB exchange mechanism with limits,based on communicating domestic and overseas capital markets,and rationalize the price level of Chinese Depositary Receipts;information disclosure should be constructed as a basic securities issuer.The disclosure system based on the principle of disclosure by the depositary and the principle of disclosure at a low price.Establish a sound legal mechanism for the disclosure of information on depositary receipts and supervision through a sound legal system of depositary receipts.At the same time,China should conduct international securities regulatory cooperation to strengthen China’s cooperation with China Extraterritorial supervision of depositary receipts;jurisdictional disputes can be governed by the American Depositary Receipts "behavior and effect" principle to protect investors’ interests,and exercise jurisdiction with other countries through bilateral and multilateral agreements. |
