金融法（双语）第九章国际金融法律制度

,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2013/7/21,#,第九章 国际金融法律制度,一、国际金融市场的准入,二、国际银行业监管,三、国际证券业监管,第九章 国际金融法律制度,一、国际金融市场的准入,1. WTO体系下 的金融市场准入,GATS效劳贸易总协定：跨境提供cross-border supply、境外消费consumption abroad、商业存在commercial establishment、自然人移动movement of natural persons,金融效劳附件：针对金融业的特点和需要而制定,金融承诺表：记载WTO各成员方在金融效劳贸易方面对市场准入和国民待遇的承诺以及附加承诺,2. 中国金融市场对外准入制度,市场准入限制,国民待遇限制,超出承诺：QFIIQualified Foreign Institutional Investor?合格境外机构投资者境内证券投资管理暂行方法?2002年,第九章 国际金融法律制度,一、国际金融市场的准入,3.,案例,China Certain Measures Affecting Electronic Payment Services,Facts:,(1) China imposes market access restrictions and requirements on service suppliers of other Members seeking to supply electronic payment services in China.,(2) China UnionPay (CUP), a Chinese entity, is the only entity that China permits to supply electronic payment services for payment card transactions denominated and paid in renminbi (RMB) in China.,(3) China also requires the handling by CUP of all RMB transactions in Macao or Hong Kong using payment cards issued in Mainland China, as well as any RMB transactions in Mainland China using RMB payment cards issued in Hong Kong, China or Macao, China.,(4) China requires all payment card processing devices at merchant locations, all automated teller machines (ATMs), and all point-of-sale (POS) terminals in China to be compatible with CUPs system and capable of accepting CUP payment cards. China also requires that all acquiring institutions post the CUP logo and be capable of accepting all payment cards bearing the CUP logo. China further requires that all payment cards, including dual currency cards, issued in China capable of being used for transactions denominated and paid in RMB bear the CUP logo.,(5) China also requires that all cross-bank or inter-bank transactions involving payment cards be handled through CUP, and prohibits the use of non-CUP payment cards for cross-region or cross-bank or inter-bank transactions.,第九章 国际金融法律制度,一、国际金融市场的准入,3. 案例,China Certain Measures Affecting Electronic Payment Services,Opinions of The United States of America:,(1)The measures fail to keep consistency with Chinas obligations under GATS Articles XVI, XVI:2 and XVII.,(2)The measures also appear to nullify or impair the benefits accruing to the United States directly or indirectly under the cited agreements.,(3)Accordingly, the United States respectfully requests that, pursuant to Article 6 of the DSU, the Dispute Settlement Body establish a panel to examine the matter, with the standard terms of reference as set out in Article 7.1 of the DSU.,Date of the case: February 11, 2021,第九章 国际金融法律制度,二、国际银行业监管,1. 巴塞尔委员会,全称：“巴塞尔银行监管委员会The Basle Committee On Banking Supervision,重要任务：堵塞国际监管中的漏洞,两项根本原那么：没有任何境外银行机构可以逃避监管；监管应当是充分的,措施：交换各国的监管安排方面的信息、提高国际银行业务监管技术的有效性、确立最低限度的监管标准,性质：是国际清算银行的一个正式机构，是国际银行监管领域最重要且最有影响力的一个组织；但是并不具备凌驾于国家之上的正式监管特权,2. 中国的监管,?银行业监督管理法?,中国银监会,参加巴塞尔委员会，与国际标准接轨,第九章 国际金融法律制度,二、国际银行业的监管,3.,案例,OCC and Peoples Bank of China Assess Money Penalties against Bank of China,Date of the case,: January 18, 2002,Facts:,(1) The Office of the Comptroller of the Currency and the Peoples Bank of China announced they have entered into separate actions against Bank of China and its U.S.-based federal branches for misconduct engaged in by prior management.,(2) The OCCs monetary penalties were levied against one of the New York branches, where the misconduct was uncovered, but the remedial measures cover all three branches. The Peoples Bank of China is the home-country regulator of Bank of China.,(3) The misconduct, which resulted in significant losses to the New York Branch, included showing preferential treatment to certain customers of the New York branch who had personal relationships with some members of the New York branchs prior management.,第九章 国际金融法律制度,二、国际银行业的监管,3.,案例,OCC and Peoples Bank of China Assess Money Penalties against Bank of China,OCCs requirements:,(1) Strengthen their Risk Management Division, ensuring that it has unrestricted access to documents, files and personnel of the federal branches, and authority to terminate customer relationships, deny loans and conduct investigations.,(2) Develop new policies and procedures to guard against fraud in trade settlement transactions, including direct verifications of documents submitted by customers.,(3) Adopt new policies and procedures to prevent loan fraud, including analysis of related accounts, requirements for audited financial statements and additional due diligence on large customers and those who conduct business with the large customers.,(4) Hire an independent third-party to conduct a portion of the direct verifications of trade settlement documents and conduct due diligence on large customers and their business relationships.,(5) Implement new procedures to identify account owners and beneficial owners. In the case of business accounts, officers, directors and major shareholders must be identified and, in some cases, credit reports are required for account owners, beneficial owners, shareholders and other parties.,第九章 国际金融法律制度,二、国际银行业的监管,3.,案例,OCC and Peoples Bank of China Assess Money Penalties against Bank of China,Results:,(1)Bank of Chinas U.S. branches have already begun to implement the remedial measures required in the consent order. In taking the enforcement action, both the OCC and the Peoples Bank of China recognized the banks willingness to rectify past problems and the substantial progress that it has made. The two agencies believe that the banks reorganization of the branches will better ensure compliance with applicable federal law and safe and sound banking practices.,(2) The enforcement action stems from a lengthy investigation by the OCC and a separate inquiry by the Peoples Bank of China.,第九章 国际金融法律制度,三、国际证券业监管,1. 国际证监会组织International Organization of Securities Commissions，简称IOSCO,性质：非政府国际组织，其不具备任何凌驾于国家之上的正式监管特权,作用：为国际证券市场提供了统一的监管标准、原那么与方法；为打击国际证券与期货领域的各种违法犯罪行为制定了有关准那么和指南；发放调查问卷、制定供各会员进行自我评估而使用的评估标准，监督其会员；对不执行上述决议、准那么、标准等的会员进行道义上的劝导,宗旨：证券监管机构共同合作，确保从国内市场和国际层次更好地监管市场，以保持公正和有效的市场；根据各自的经验交换信息，以促进国内市场的开展；共同努力设定标准和建立对国际证券交易的有效监管；相互间提供协助，通过有力地执行各项标准和对违规的有效监管来确保市场的完善,2. 中国的监管,?证券法?,中国证监会,区域性合作：亚太经济合作组织,全球性多边合作：参加了IOSCO； ?关于磋商、合作和信息交流多边谅解备忘录?,第九章 国际金融法律制度,三、国际证券业监管,3. 案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Date of the case: September 22, 2021,Index number: Rel. No. 62968,Admin. Proc. File No. 3-13860,SECs opinions:,(1)Laws:,(i)Section 15E of the Securities Exchange Act of 1934 and related rules,(ii)Exchange Act Section 15E(a)(2)(A),(2)On April 14, 2021, SEC issued an order instituting proceedings to determine whether Dagongs application should be denied, and directed the parties to submit briefs addressing issues of law or fact in dispute and noted that the possible grounds for denial included:,(i)whether Dagong has sufficient connection with U.S. interstate commerce to register as an NRSRO and invoke SECs regulatory and oversight authority,(ii) whether Dagong would be unable to comply with those provisions of the federal securities laws and rules that require registrants to create and maintain certain records that are subject at any time to Commission examination and that must be furnished to the Commission upon request,(iii) Having considered all these submissions, which Neither party objected, SECdenied Dagongs application because, irrespective of the jurisdictional question does not appear possible at this time for Dagong to comply with the recordkeeping, production, and examination requirements of the federal securities laws.,第九章 国际金融法律制度,三、国际证券业监管,3. 案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Positions of the parties:,Dagongs application for NRSRO status :,(1) Dagong is headquartered in Beijing and has more than two dozen branch offices throughout China, but it currently has no office in the United States.,(2) Dagong is licensed to operate as a credit rating institution by the China Securities Regulatory Commission (CSRC) and is subject to its oversight, rules, and regulations.,(3) Dagong represents that it rates the credit of several Chinese companies that are listed on stock exchanges in the United States and that several American companies have used Dagongs Web site to consult its ratings.,Dagongs view of its ability to comply with applicable law,(1) Dagong submitted a letter on March 10, 2021 and explained that Dagong would make a good-faith effort to comply with those rules, subject to the requirements of Chinese law.,(2) In its opening brief, Dagong explained how the Commission would have access to Dagongs records in practice,(3) The documents would then be translated, Dagong noted. Dagong further explained that the document production would be subject to provisions in Chinese law that prohibit the disclosure of documents containing,第九章 国际金融法律制度,三、国际证券业监管,3. 案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Positions of the parties:,OIAs efforts to clarify the CSRCs position with respect to the Commissions ability to inspect Dagongs records:,(1) At the request of the Division, the Commissions Office of International Affairs (OIA) exchanged several letters with the CSRC from March to May 2021, inquiring about Dagongs ability to comply with the federal securities laws and regulations applicable to NRSROs.,(2) By letter dated March 26, 2021, the CSRC responded that the issue of on-site visits for examination of an NRSRO would require an arrangement between the Commission and the CSRC. The CSRCs response did not address OIAs questions about the production of documents and reports.,(3) On April 14, 2021, OIA responded to the CSRC, pointing out that the CSRCs March 26 letter was silent on the issue of whether Dagong would be able to provide documents to the Commission in response to requests.,(4) OIA also noted that it had informed the Division that the CSRC had been unable to confirm that Dagong would be able to produce directly to the Commission information required.,(5) The CSRC reiterated its position that the resolution of issues arising from Dagongs NRSRO application were contingent upon resolving its concerns with the PCAOB about the inspection of Chinese accounting firms.,第九章 国际金融法律制度,三、国际证券业监管,3.,案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organizatio,n,Applicable law :,(1)Exchange Act Sections 15E(a)(2)(C)(ii)(II), 15E(d), and 15(b)(4)(D),(2)Exchange Act Section 17(b)(1),(3)Exchange Act Rule 17g-2,SECs opinions about Dagongs proposal for inspection and production of documents and reports,(1) Dagong would not control what information would be produced to Commission staff.,(2) The process Dagong proposes for document production and inspection does not meet the requirements of Exchange Act Section 17(b) and related rules.,(3) The existing arrangements do not contemplate access to non-public supervisory information located abroad or cooperation in on-site inspections of regulated entities located abroad. In any event, the existing arrangements do not authorize the delegation of oversight responsibilities from one regulator to another.,(4) Dagong does not define state secrets in its briefs and suggests that domestic law permits withholding information of vital interest to relevant securities companies.,(5) Nothing in Exchange Act Rule 15E or Rule 17g-2 defines document production as the exclusive means of oversight.,第九章 国际金融法律制度,三、国际证券业监管,3. 案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Dagongs further arguments:,(1) Dagong objects to what it perceives as the inappropriate conflation of its application for NRSRO registration with the PCAOBs ability to conduct on-site inspections of registered public accounting firms that are located in China.,(2) Dagong argues that many Chinese companies are registered with the Commission and that they in fact provide information to the Commission on a regular basis. There is no reason to believe that an NRSRO cannot do the same.,(3) Dagong also argues that the Commission must assume that Dagong, if granted NRSRO status, will continue to comply with requests for information in the same way that it has supplied information in support of its NRSRO application.,(4) Dagong also suggests that the Commission should grant its application because, in the event Dagong eventually fails to comply with the securities laws, the Commission has the power and the authority to deregister Dagong at a later time.,第九章 国际金融法律制度,三、国际证券业监管,3.,案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Rationale:,(1) raised concerns for Commission staff about whether the CSRC would take a similar position with respect to examinations of NRSROs. When the staff followed up on those concerns, the position of the CSRC with respect to Dagong i.e., that the CSRC will not currently permit Commission staff to conduct on-site inspections of Dagong and sees no immediate need for the staff to examine its records indicated that Dagong is unable to comply with the recordkeeping, examination, and production requirements applicable to NRSROs, as we discussed above.,(2) the ability of Chinese companies registered under other provisions of the securities laws to discharge their disclosure and reporting obligations does not bear on Dagongs ability to comply with oversight requirements applicable to NRSROs.,(3) the documents required to conduct an examination are not necessarily similar in kind or content to the documents Dagong has so far submitted in support of its application and,under the proposed framework, Dagongs supervisory authority, and not Dagong, would manage the process of identifying, collecting, and producing documents for inspection.,(4) Section 15E does not contemplate this kind of approach. To the contrary, Section 15E requires the Commission to reject a credit rating agencys application if the agency cannot comply with the federal securities laws at the time when the Commission considers its application for registration as an NRSRO.,第九章 国际金融法律制度,三、国际证券业监管,3. 案例,Order Denying Application for Registration as a Nationally Recognized Statistical Rating Organization,Decision:,(1)deny Dagongs application for NRSRO status. SEC cannot conclude that Dagong is able to comply with the Exchange Acts recordkeeping, production, and examination requirements. Because Dagong is currently unable to comply with these requirements, and SEC does not reach the issue of whether Dagong at this time has sufficient connection with U.S. interstate commerce to register as an NRSRO and invoke our regulatory and oversight authority.,(2) Accordingly, IT IS ORDERED that the application for registration as a Nationally Recognized Statistical Rating Organization filed by Dagong Global Credit Rating Co., Ltd., on December 24, 2021 be, and it hereby is, DENIED.,