Factbox: How financial firms in Hong Kong may be
affected by U.S. sanctions
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[August 10, 2020] By
Alun John and Scott Murdoch
HONG KONG (Reuters) - The United States has
imposed sanctions on Hong Kong Chief Executive Carrie Lam and 10 other
top Hong Kong and Chinese officials over what Washington says is their
role in curtailing political freedoms in the territory.
The sanctions, which came on Aug. 7, more than a month after Beijing
imposed national security legislation on Hong Kong, will freeze any U.S.
assets of the officials and generally bar Americans and American
companies from doing business with them.
The security law, which has drawn condemnation from Western governments,
was imposed in late June. Supporters said it would restore stability
after a year of often-violent pro-democracy, anti-China protests.
Below are the main ramifications and concerns for financial firms in
Hong Kong.
Will financial firms implementing sanctions run afoul of the national
security law?
Under the law, it is a crime to receive "instructions, control or
funding from a foreign country ... to impose sanctions or blockade"
against Hong Kong or mainland China.
It is uncertain whether abiding by U.S. sanctions would breach this
aspect of the law, legal experts say.
"Short answer is potentially yes, as the original Chinese text of
Article 29(4) (of the security law) states that carrying out sanctions
of a foreign government against HK or the PRC (People's Republic of
China) would be a violation," said Mini vandePol, Asia Pacific head of
Baker McKenzie's compliance and investigations group.
"This is an expansive interpretation and would have immense
ramifications on many businesses in Hong Kong," she added. "To this day,
we have not yet seen any enforcement of Article 29(4) in this way, nor
has there been official guidance on this point."
The Hong Kong Monetary Authority said in a circular on Saturday the
sanctions had no legal status in Hong Kong, and unlike United Nations
sanctions, banks in Hong Kong were under no obligation to comply with
them.
When asked by Reuters whether or not banks were prohibited from
enforcing the sanctions, the HKMA said it had nothing to add to the
circular.
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A general view of the financial Central district in Hong Kong, China
July 25, 2019. REUTERS/Tyrone Siu
A blog post by two respected legal scholars published in late July said
financial firms would not breach the law "merely by participating in the
implementation of the sanctions" but they could become liable in certain
exceptional circumstances.
The blog post was written by Albert Chen and Simon Young, both
professors at Hong Kong University's law faculty.
Which types of financial firms are affected by the sanctions and how?
U.S. banks and asset managers operating in the United States cannot do
business with any of the 11 sanctioned people or any companies those
people control.
"It is likely that U.S. banks operating in Hong Kong will follow their
headquarters' instructions on this on account closure," said Josephine
Chung, solicitor and CompliancePlus Consulting director.
Non-U.S. firms can continue to provide banking services to the
sanctioned people, but when doing so they cannot also work with the U.S.
financial system, people or companies.
Is there more to come for foreign financial firms in Hong Kong?
Yes. Friday's sanctions were imposed under an Executive Order signed by
President Donald Trump on July 14.
That order adds to the United States' Hong Kong Autonomy Act, which also
creates a process for identifying and sanctioning foreign financial
firms that knowingly engage in "significant transactions" with people
who contributed to the current situation in Hong Kong.
The people on this list have not yet been named nor is there clarity
about what constitutes a significant transaction.
(Reporting by Alun John and Scott Murdoch; Editing by Sumeet Chatterjee
and Raju Gopalakrishnan)
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