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Continuous Disclosure of Chinese Cross-border Listed Companies in Australia: Challenges and Proposals(2022) Guo, BelleThesisChinese listed companies are struggling to meet the continuous disclosure requirements of the Australian Securities Exchange (ASX) and have even been depicted as having poor corporate governance and transparency. Many get delisted from the ASX due to non-compliance in continuous disclosure or are rejected from listing because of continuous disclosure compliance concerns. This thesis addresses one overarching research question: What are the challenges faced by Chinese lawmakers, Chinese listed companies, Chinese companies’ external advisers and securities regulators in dealing with Chinese cross-border listed companies’ continuous disclosure in Australia — and how can these challenges be addressed? This thesis is theoretically founded on the divergent evolution and rationales for continuous disclosure requirements in Australia and China. The evolution of listed companies’ continuous disclosure requirements in Australia can be described as a market-driven process, the most theoretical underpinnings of which are market integrity and investor protection. In contrast, the fundamental rationale behind the presence or absence of continuous disclosure requirements throughout the history of the Chinese securities market is the service of the political economy in the corresponding period. This thesis investigates the research question through the following four dimensions based on such a theoretical framework. First, the application of continuous disclosure requirements for listed companies is composed of three elements in Australia and China: the non-general availability criteria, materiality thresholds, and timeliness requirements. Divergences regarding each element reflect weaknesses of the Chinese continuous disclosure rules. Second, deficiencies exist regarding the continuous disclosure compliance management regime within Chinese listed companies. Third, the obligation of due diligence surrounding external advisers’ monitoring role in Chinese listed companies’ continuous disclosure compliance has limitations. These limitations are manifested in two aspects of the due diligence obligation: the duty of care and the independence requirements. Last, there are also difficulties in respect of the Chinese securities cross-border supervision regime. This thesis thus proposes corresponding reform suggestions in respect of each of these challenges, with relevant experiences in Australia taken into consideration.
A Critique of Chinese Dual-Class Structure Listing Regulation: Lessons Learned from Overseas Experiences(2022) Wu, ShangxuanThesisThe concept of the dual-class structure listing (DCS listing) indicates the corporate financing and governance practice under which a particular listing firm issues two or more classes of common shares with different voting shares per class. The advantage of DCS concentratedly lies in the sufficiently safeguarding the founder’s idiosyncratic visions and protecting the long-term benefit maximization goal from the short-termism. Simultaneously, the latent defects of DCS consist of the volatility of the superiors voting rights holders’ personal attributes and the weighted voting power abuse risks. To a large degree, the DCS regulation within China’s institutional context can be a new issue. In comparison with the US history for over a century of DCS listing practice and regulation, China did not lift its ban on the domestic DCS listing until 2019. Among these jurisdictions in the Asian-Pacific region, the US, Hong Kong SAR, and Singapore might provide remarkable experiences. Chapter 1 will portray a general tendency of the rise of DCS listing worldwide and briefly comb the practical issues regarding DCS listing within the Chinese institutional context. Chapter 2 will try to clarify the conceptual boundary of DCS listing in terms of history and discourse evolution, this chapter will briefly retrospect China’s overseas and domestic DCS listing practices and the current DCS listing regulation framework as well. Chapter 3 aims at systematically delineate and retrospect China’s institutional environment involving corporate governance. Chapter 4 aims at examining both the empirical and on one hand, this chapter tries to review the existing empirical studies to evaluate the empirical evidence’s support for the question raised above. On the other hand, this section will come back to examine the theoretical corporate governance discussion on long-termism v. short-termism. Comprehensively, this part will try to retrospect the shortcomings of the short-termism rhetoric and simultaneously construct the legitimacy of long-termism discourse in terms of improving corporate governance patterns. Chapter 5 focuses on how to supply specific measures to improve both DCS listing practices and regulation. First, it will discuss the feasibility of mandating a time-based sunset provision. Also, it will evaluate the whether it is possible to use the time-phased voting to mitigate the latent defects of sunset provisions utilisation. Following, a brief conclusion is given.
Essence and Extension: When does the Use of Trade Secrets Constitute the Abuse of Market Dominance in China and How Should the Current Approach be Improved?(2022) Wu, PeichengThesisThis Thesis examines the situations in which the use of trade secrets can constitute an abuse of market dominance under China’s Anti-monopoly Law and considers how the law should be applied in practice. It is generally accepted that competition law and intellectual property law have the complementary goals of promoting competition. Trade secrets are regarded as a category of intellectual property and competition law applies when the exploitation of trade secrets leads to anti-competitive effects. There are some cases where Chinese competition authorities and courts have dealt with the abuse of dominance cases arising from the use of trade secrets, but the Thesis argues that the existing Chinese competition rules should be more specific in relation to the issue. In order to improve Chinese competition enforcement in this respect, the Thesis examines comparative competition experience from both sides of the Atlantic to analyse market definition, market dominance and some abusive practices with regard to trade secrets. It makes recommendations on an appropriate methodology for China. To keep a balance between the antitrust intervention and the use of trade secrets, and to make the application of Chinese competition law predictable, the Thesis recommends reforming Chinese competition rules to establish specific tests for determining the abuse of dominance in trade secrets. It suggests that China should consider the characteristics of trade secrets (as opposed to other forms of intellectual property) in the abuse of dominance cases when amending China’s anti-monopoly guidelines regarding intellectual property. These recommendations, if adopted, would provide Chinese competition authorities and courts with more specific guidance on dealing with the interplay between competition law and the exploitation of trade secrets in the future, and improve the enforcement of Chinese competition law in the area.