شالوده شکنی اسطوره آلیپی درام - سیاسی شدن دوباره سرمایه گذاری خارجی در بخش مخابرات چین

Alibaba’s dispute with Yahoo and Softbank over Alipay’s ownership in 2011 again brought China’s telecoms law and foreign investment policies into the spotlight. Although China has officially opened up its telecoms services sector to foreign investors according to its WTO Agreement, foreign investors are still experiencing various difficulties when they enter the Chinese market. Recent years have witnessed some new regulatory movements tackling the variable interest entity structure (or the VIE structure) adopted by foreign investors in investing into China’s telecoms industry. This article reviews the VIE structure and Chinese regulatory counter measures, and offers a political economy insight to Chinese telecoms policy changes. In addition, the article attempts to review the struggles between regulators and regulatees in the business community through the lens of economic regulatory/development model with Chinese characteristics.

The People’s Republic of China (PRC or China) became the second largest economic power in the world in 2010 (Pilling, 2010). As the world’s fastest-growing and most populous telecommunications and Internet market, in the first three quarters of 2011, China’s overall telecoms business revenues reached RMB 734.26 billion (MIIT, 2011), which not only attracts foreign investors to invest and but also motivates Chinese entrepreneurs to capitalize on the foreign funding (Einhorn, 2000). In spite of China’s promise to open itself more in its telecoms industry to foreign investors as per a fixed schedule, foreign investors still encounter various difficulties in practice. As a result, foreign investors continuously make great efforts to rely upon creative transactional models to have a bite of China’s lucrative telecoms sector, which in turn attracts increasingly strong regulatory opposition. The struggle between the regulator and the regulated deserves some attention not only because foreign investors need to work out reliable and feasible transactional models to access Chinese market but also that the struggle reflects the problematic sides of industrial regulation and its underlying rationale, which is opposite to the unbundling or deregulatory trend in the telecoms sector in other jurisdictions (Baldwin, Cave, & Lodge, 2012), and, deep down, demystifies the extent to which the Chinese government is committed to the rule of law in its governance. The article is structured as follows. Section 2 briefly examines China’s telecoms laws and policies relating to foreign investment in the 21st century. Section 3 discusses the use of the VIE structure by foreign investors in order to circumvent restrictive Chinese laws governing foreign investment in the telecoms sector. This part also looks into the recent dispute among Alibaba, Yahoo and Softbank over Alipay as a case study and assesses the legality and enforceability of the VIE structure. Some measures taken by the government in tackling the VIE structure are also discussed in this part. Section 4 offers the rationale for policy intervention with the VIE structure. The policy considerations are grouped under the headings of economic, industry specific and political perspectives. Section 5 discusses the general defects in China’s regulatory system and explains the reasons why the business community is discontent with the regulatory regime in China. A tentative conclusion will be followed in Section 6 with a purpose of envisaging possible evolutions in years to come.