Offshore Economic Substance Requirements

From 1 January 2019, various offshore jurisdictions have enacted economic substance (ES) requirements, although there are differences and local nuances in each of the respective jurisdictions involved. Generally speaking, the introduction of ES requirements in such traditional ‘no or nominal tax jurisdictions’ has raised concerns amongst individuals or corporations who have been using offshore companies, whether in the conduct of a trade or business, funds or investment management, family-owned businesses or trust structures using offshore companies for the holding of investments or real properties, multinational groups with an offshore listing vehicle and/or holding companies, and so forth. As such, the impact of the ES requirements on the use of entities in such no or nominal tax jurisdictions needs to be assessed, immediately and on an ongoing basis.

In this legal update we provide an outline of the broad global context and the general ES requirements for information and discussion, while specific details of the ES requirements that may apply to specific entities in specific offshore jurisdictions should be considered in consultation together with lawyers of the particular jurisdictions in question.

Specifically, we consider the types of entities and activities that may be impacted, the potential implications and options that may be available to comply or address the ES requirements, including whether companies may “relocate” or obtain tax residency in another jurisdiction such as Hong Kong, which we suggest careful analysis should be undertaken in review.

To view a Chinese version of this update:

“Green” or “ESG” Funds? Hong Kong Regulator Issues Guidelines

An evolutionary force has built momentum in recent years within the global investment management industry and investors community – a greater focus on the power of capital for good and purpose. Beyond “green investing” to fight climate change, it goes from sustainable investing to ethical or impact investing, encompassing objectives to embrace broader responsibilities that take into account environmental, social and corporate governance (ESG) factors.

In the broader context, the investment industry and capital markets are responding to governmental policies and investors demand for capital allocation with these objectives. Yet, there are varying degrees and approaches to addressing ESG factors, with limited regulatory requirements that provide specific framework. What counts as green, or what specific environmental, social or governance issues are being addressed, and how?

With an increase in the offering of investment products or services with proposed green or ESG investment objectives or policies, there is an issue of clarity or sufficiency of disclosures. This makes it difficult for investors to compare and contrast the available choices of products – what exactly are the products purported to be or to what extent are the investment strategies or investment portfolios actually “green” or “ESG” compliant.

On 11 April 2019, the Hong Kong Securities and Futures Commission (“SFC”) issued its Circular to management companies of SFC-authorised unit trusts and mutual funds to address “Green” or “ESG” funds (Circular). The aim is to enhance disclosure comparability between similar types of SFC-authorised Green or ESG funds and their transparency and visibility in order to facilitate investors making informed investment decisions in this evolving investment areas.

The Circular would serve to require and obligate investment managers offering investment products with an expressed green or ESG focus or who intend to do so to carefully consider whether their fund would and is able to comply within the SFC’s expected framework for Green or ESG funds and become designated as such.  An investment manager of Green or ESG funds would also be expected to have a proper and robust investment selection process and assessment criteria in line with its stated investment focus and green or ESG principles, and may seek to obtain a third party certification or fund labeling or would rely on its self-confirmation.

Our legal update outlines the background and context of the growth of Green or ESG funds, Hong Kong’s efforts and SFC’s issued framework for such funds as set out in the new Circular:

 

MS Group Holdings Limited’s Hong Kong Main Board Listing 万成集团香港联合交易所主板上市

Vivien Teu & Co LLP represented MS Group Holdings Limited (“MS
Group”) in its share offer and successful listing on the main board of the Hong Kong Stock Exchange on 1 June 2018. First Shanghai Capital Limited acted as
the sole sponsor while First Shanghai Securities acted as the bookrunner and lead manager of the share offer.

MS Group produces and sells plastic bottles and cups for infants and toddlers and plastic sports bottles on
an OEM basis for overseas markets and in 2012 commenced the production and sales of infant and toddler products under its own brand for the PRC market.

张慧雯律师事务所有限责任合伙代表万成集团股份有限公司(“万成集团”)完成其于2018年6月1日香港联合交易所主板上市及股份发售。第一上海融资有限公司作为本次股份发售的独家保荐人,第一上海证券作为此交易的账簿管理人及牵头经办人。

万成集团按OEM模式为海外市场生产和销售婴儿及幼儿塑料樽及杯以及运动塑料水樽,并于2012年开始就中国市场以自有品牌生产及销售婴儿及幼儿产品。