China – Know your investor

Time to read: 3 min

Chinese outbound M&A was one of the main topics of interest at the 2017 Hong Kong IFLR Forum on M&A in Asia, a great event with an outstanding level of speakers and very interesting discussions on various themes related to international investments.

All the attendants shared the view that momentum for Chinese overseas investments is still strong, despite the recent policy aiming at curbing the outflow of capitals from China.

A particularly interesting session was that on “best practices to overcome credibility and experience gaps increasingly faced by “off the radar” Chinese bidders”.

Opening a one-to-one negotiation or letting a Chinese company bid at an auction involves often great deal of uncertainty, as most participants to the session shared the experience of having seeing their Chinese counterpart walk away from the negotiation without any explanation (the so-called “Random Investors”).

I have scribbled down the take-aways of the discussion as follows.

Main clues to spot early on the Random investor:

  • the Company pops out from nowhere and has no track record of overseas investments;
  • the Company has no legal or financial advisors, or if they do, their advisors are not experienced in overseas transactions;
  • the Company has excellent advisors… but has not paid their fees (yes, that happens)
  • the target does not belong to the Company’s core business (and there is no explanation for their interest for the deal);

What should you do to be on the safe side?

  • request a written declaration of interest, expressing the reasons why the Company wants to invest in the target and what is their mid term strategy, signed and stamped by the legal representative (if they are not ready to hand over this letter the game can stop here).
  • If the Company represents a group of investors, require full disclosure and letters of confirmation from all parties, from day one (AC Milan’s case is a good example of what happens later on if there is no disclosure of all players, and their stakes in the deal);
  • request proof that the Company has filed the application for the authorisation to invest overseas (due to the recent tightening of controls on capital outflow, this step is fundamental);
  • request proof that they have the finance needed for the deal (either onshore or, better, off-shore);
  • make clear that you will require a “break fee” (which can vary from 5 to 10%) in case they walk away from the negotiation (we have heard of US companies expecting 30 to 50% break fee on the value of the deal…)
Roberto Luzi Crivellini
  • Arbitration
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