Thirdly, the Special Provisions and the Mandatory Provisions need to be perfectly revised. (i) As according to Article 238 of the PRC Securities Law (2005 Revision), the legislation basis of the Special Provisions have changed and the PRC State Council is no longer authorized to prescribe special regulatory requirements for overseas listing, the articles in the Special Provisions that are inconsistent to the PRC Company Law (2005 Revision) shall be corrected. For example, the Special Provisions requires that written notice of general meeting of shareholders shall be sent out 45 days in advance, but the PRC Company Law (2005 Revision) requires the time, place and remits of general meeting of shareholders shall be notified 30 days in advance.[25] (ii) Because the Special Provisions is a higher-level law of the Mandatory Provisions, the articles in the Mandatory Provisions that are inconsistent to the PRC Company Law (2005 Revision) and the Special Provisions shall be timely revised after the revision of the Special Provisions. For example, according to Article 50 of the Mandatory Provisions, the shareholders owning more than 5% of shares with voting rights have the right to advance proposals in general meeting of shareholders, but the provision of Article 103 of the PRC Company Law (2005 Revision) stipulates that the shareholders individually or totally holding more than 3% of shares have the right to propose resolutions in the general meeting of shareholders. (iii) The provisions in the Special Provisions and the Mandatory Provisions with respect to dispute resolution and applicable laws shall be properly revised. For example, DIRECT OVERSEAS LISTING shall be mainly applicable to the laws of the target market, but Article 6 of the Special Provisions requires that the laws of the PRC shall be applicable to solve the disputes involving H-share shareholders. Furthermore, Article 163 of the Mandatory Provisions requires that all transnational contractual and non-contractual securities disputes involving H-share companies listed on the HKEX shall be submitted to arbitration, which obviously goes against the principles of voluntary arbitration and of party autonomy.[26] (iv) Some regulatory requirements of the Special Provisions and the Mandatory Provisions are divorced from the development of practices. For example, in recent years, with the approval of the PRC State Council, some institutions such as National Council for Social Security Fund of the PRC (NCSSF), China Investment Corporation and insurance companies began to join the campaigns of investment in overseas securities market, some financial institutions such as mutual funds, securities firms and commercial banks was authorized to invest in overseas securities markets by qualified domestic institutional investor (QDII), and a lot of domestic natural persons and corporations are in fact directly invested in overseas stock market. Under this circumstances, the scope H-share investors is far beyond that defined by current regulatory provisions.
Fourthly, the regulatory requirements for H-share companies are incongruous with those for A-share companies. For example, as regards the reduction of state-owned shares, the regulatory requirements for H-share companies provide that the state-owned shareholder shall proportionally reduct the state-owned shares, not only at the stage of initial public issue of H shares, but also when the H-share company makes additional offering of H shares. As such, the H-share issuers has to ask its state-owned shareholder(s) to obtain the related approval from the State-owned Assets Supervision and Administration Commission of the PRC State Council (SASAC) and the NCSSF respectively before applying for directly overseas listing to the CSRC. However, for A-share companies, the state-owned shares are required to be reduced only during the initial public issue, and the state-owned shareholders are not required to reduce the state-owned shares during the subsequent increasing investment for issuing A shares.[27] The second example is that according to the Mandatory Provisions, in the event that the proportion of shares with voting rights held by shareholders who intending to attend the general meeting of stockholders, does not reach the half of all the shares with voting rights, the H-share company shall notify the shareholder with a public announcement prior to the general meeting of stockholders;[28] However, there is no requirement of reminding announcement before A-share companies’ general meeting of stockholders in the PRC Company Law (2005 Revision) and related regulatory rules prescribed by the CSRC.[29] The third example is that it is required by the Mandatory Provisions that each director of the H-share company shall have one vote in the board meeting, and in case of the affirmative votes as same as the negative votes, the chairman of the board has right to cast one more vote;[30] However, as for A-share companies, it is stipulated that each director has one vote in the boarding meeting without any exception.[31] With the increase of the number of companies concurrently listed domestically and overseas, such matters will no doubt make the listed companies feel difficult to comply with different regulatory requirements.[32]