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LEGAL: Latest Reform on the Foreign Exchange Settlement under Capital Accounts
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Latest Reform on the Foreign Exchange Settlement

under Capital Accounts

- SAFE Circular 16

By Manuel Torres Managing Partner of Garrigues China & Dun Zhang, Corporate Associate, Xuezhou Chen, Corporate Associate

BT 201608 120 01 Legal forex samplesAiming at implementing nationwide reforms and unifying the current foreign exchange settlement policies under capital accounts, on June 15th, 2016, the State Administration of Foreign Exchange ("SAFE") launches Circular on Reforming and Regulating Policies on the Administration over Foreign Exchange Settlement under Capital Accounts (Huifa [2016] No.16) (in Chinese, "国家外汇管理局关于改革和规范资本项目结汇管理政策的通知") ("Circular 16") on its official website.

Circular 16 shall take effect on June 9, 2016 and the key features are highlighted as follows:

1. Nationwide Adoption of "At Will" Approach (in Chinese, "意愿结汇") for the Settlement of Foreign Debts

Based on the experimental implementation in four pilot free trade zones in Shanghai, Tianjin, Guangdong and Fujian, Circular 16 extends the "At-Will" approach for foreign debts settlement to the whole country. According to Circular 16, all domestic enterprises, including domestic-funded enterprises and foreign-invested enterprises (excluding financial institutions) could choose at will the timing for foreign exchange settlement of foreign debts.

2. Unified Policy on "At Will" Approach for Foreign Exchange Settlement under Capital Accounts

BT 201608 120 05 Legal 20150130162353920Circular 16 unifies relevant policies previously released by SAFE on the "At-Will" approach for foreign exchange settlement under capital accounts, including policies on settlement of foreign exchange registered capital, foreign exchange foreign debts, repatriated foreign exchange funds raised through overseas listing and foreign exchange in the funds pool operated by the multinational enterprises. Other than the "Settle-to-Pay" approach (in Chinese, "支付结汇"), Circular 16 enables all domestic institutions to choose the timing and amount to convert their foreign exchange funds under capital accounts into RMB, at current stage. No limitation is set by SAFE, i.e. 100% of said foreign exchange funds could be converted into RMB, but SAFE shall be entitled to adjust the ration according to the then balance of international payment. Under the "At-Will" approach, domestic institutions shall open a "Settled-to-be-Paid" account (in Chinese, "结汇待支付账户") to store the settled RMB. No document evidencing the usage of the settled RMB funds is required to be provided to the bank upon "At-Will" settlement, while SAFE will mainly fulfill the administration on usage of foreign exchange and the settled RMB upon payment, where documents evidencing the authenticity of usage of settled RMB funds or foreign exchange capital funds, such as the underlying contracts and invoices, shall be submitted to banks. In addition, banks will also verify the authenticity and compliance of evidencing documents for the previous payment when handling each payment of capital funds.

Notwithstanding the above, Circular 16 increases the limitation of accumulated amount of monthly imprest payment of a single institution from USD 100,000 to USD 200,000, which means the domestic institution could convert in maximum USD 200,000 per month into RMB in the name of imprest (in Chinese, "备用金"), without providing documents evidencing the payment.

3. Negative List for Usage of Foreign Exchange under Capital Accounts and the RMB Funds Settled Therefrom

BT 201608 120 02 Legal timgCircular 16 intends to adopt a "Negative List" approach to administrate the usage of foreign exchange and "At-Will" settled RMB funds under the capital account. It regulates as follows:-

(1) They shall not be directly or indirectly used for payment beyond the business scope of enterprises or payment prohibited by the PRC laws and regulations;
(2) Unless otherwise provided by PRC laws and regulations, they shall not be directly or indirectly used for securities investment or other investment and financing except for the principal safeguarded bank wealth management products;
(3) Unless permitted by the business scope of enterprises, they shall not be used for granting loans to non-affiliate enterprises; and
(4) Except for self-use purpose or for real estate enterprises, they shall not be used for constructing and purchasing real estate.

It sounds like that it is still prohibited to convert foreign exchange funds into RMB for equity investment, unless equity investment is included in the business scope of said company. Further, based on the above Negative List, it seems that SAFE may allow affiliates to finance each other by using the foreign exchange or "At-Will" settled RMB funds; And using the "At-Will" settled RMB funds to repay the RMB bank loans (including entrusted loans) is no longer prohibited.

BT 201608 120 04 Legal 8 14120114261CQCircular 16 maintains silence on the administration of cross-border RMB under capital accounts, which has been treated same as foreign exchange under capital accounts by rules and policies promulgated by the Ministry of Commerce, the People's Bank of China and SAFE. However, after the launch of Circular 16, under the capital account there are some differences between the use of cross-border RMB funds and settled RMB funds, for example, cross-border RMB is not allowed to be used for granting entrusted loans or purchasing any wealth management products, while the settled RMB funds are allowed to grant entrusted loan to the Affiliate Entity and purchase principal safeguarded wealth management products.

Circular 16 reflects the PRC government's intention to release foreign exchange control under capital account step by step for the promotion of internationalization of RMB. Some uncertainties, like the definition of "Affiliate Entity" might be further clarified by SAFE during the implementation of Circulate 16.

As usual, Garrigues will keep a close watch on the implementation and keep our clients posted.


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