(Bloomberg Opinion) -- If you hold shares in New York-listed Alibaba Group Holding Ltd., you don’t own a stake in a Chinese internet powerhouse.
What you have are the American depositary receipts of a Cayman Islands company that has a contract with the Chinese firm. In fact, the country’s largest search and e-commerce provider(1)is ultimately controlled by Alibaba Partnership, a collection of 38 people, most of whom hold senior positions in the company.
This business structure, called a variable-interest entity, became common among Chinese companies because Beijing restricts foreign investment in certain sectors, such as the internet. It also enables firms to raise money abroad and lets early investors get their funds out of the country. Tencent Holdings Ltd., Meituan Dianping and Baidu Inc. all hew to various versions of the VIE, allowing them to exploit a gap in Chinese law.
In total, almost $1.3 trillion in market capitalization is linked to Chinese VIEs listed outside the mainland, according to U.S. credit-ratings provider Standard & Poor’s Financial Services LLC.
For now, these companies aren’t doing anything illegal and Beijing hasn’t seen the need to close this loophole. Keeping VIEs operating in a gray area gives policymakers the flexibility to crack down at will. But as the trade war intensifies, China has a growing incentive to keep its tech giants, and their cash, at home. In that light, it’s not inconceivable that officials would take steps to eliminate the structure, even if it spooks foreign investors.
For years, knowledge that the Chinese government could take action at any time hung a legal cloud over VIEs. S&P previously accounted for such risk among VIEs operating in sensitive businesses, such as Alibaba and Tencent, though not for others in more mundane areas like retail.
In a report last week, analysts Clifford Kurz and Sophie Lin wrote that recent changes in China’s foreign-investment law make no mention of VIEs, after an earlier draft sought to prohibit them. S&P interprets this to mean that concerns have diminished.
I understand their reasoning, but disagree with the conclusion.
Silence is certainly better than an explicit ban. Yet having a gray area within an opaque legal system simply puts such companies and investors at the whim of policymakers. There may indeed be a lack of incentive to dismantle VIEs today, and doing so probably would hurt foreign-investor sentiment. Neither factor amounts to much if Beijing one day gets fed up with Chinese companies using overseas listings as a way to get their assets offshore.
This year alone, 31 Chinese companies chose to raise almost $6 billion by listing in the U.S. Not because they get better valuations there, but because founders and VCs know a public offering in China would give them illiquid assets subject to capital controls.
Beijing has tried all sorts of things to encourage its companies to list at home, the latest being the SSE STAR Market – a Nasdaq-style tech board – for which regulators eased rules to attract interest. Yet as my colleague Nisha Gopalan wrote recently, Chinese companies still want to raise dollars, both to fund expansion and give Western venture-capital firms a hard-currency exit.
If such carrots keep failing, Beijing could very well bring out sticks. Given the state of U.S.-China relations, there’s little reason to believe policymakers will prioritize the concerns of foreign investors over its own desire to prevent capital flight.
This means that in assessing VIEs, foreign investors need to consider whether they’re willing to leave $1.3 trillion to the whims of a Chinese legal gray area.
(1) Alibaba's revenue primarily comes from sellers paying to get elevated in search results on its platforms.
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Tim Culpan is a Bloomberg Opinion columnist covering technology. He previously covered technology for Bloomberg News.
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