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上述主體中，僅部分境內(nèi)機構在履行必要的監(jiān)管程序后，可投資于境外私募基金，例如QDII/RQDII、QDLP/QDIE。此外，中國主權基金及社?；?與前述主體合稱“適格投資者”)由于其特殊地位，也可進行境外私募基金投資。根據(jù)我們對目前中國法律和監(jiān)管實踐的理解，境外機構在一定情況下被允許向適格投資者以非公開的方式募集基金。

對于存在較多境外業(yè)務收入的區(qū)內(nèi)企業(yè)而言，EF賬戶為其使用海外收入提供了諸多便利。此外，意見稿也反映了橫琴和海南有望成為離岸金融中心的趨勢。雖然對于境內(nèi)普通賬戶內(nèi)資金劃轉(zhuǎn)后的用途仍存在一定限制，不過，隨著境外投資試點政策深入推進和發(fā)展，可以期待EF賬戶將為境外主體募資提供更多元化的渠道。

This article addresses whether Chinese law permits foreign entities to raise private funds within the country. It also introduces the regulatory framework, practical considerations and cross-border investment opportunities under certain pilot policies.

Regulatory framework

There are no specific provisions in Chinese law for foreign private funds to issue, sell, promote and fundraise in China.

The Securities Law regulates the issuance and trading of various financial instruments including stocks, corporate bonds, depositary receipts and other securities that the State Council recognises under law.

While there is no explicit provision, the author believes foreign private funds fall under the category of “other securities recognised by the State Council”. According to the Regulations on the Supervision and Administration of Private Investment Funds, overseas institutions are prohibited from directly raising funds from investors in China to establish private funds unless specified by Chinese regulations. Therefore, overseas institutions are required to obtain approval from the State Council before raising funds within China.

Cross-border fundraising

Overseas entities usually establish internal guidelines for the cross-border activities of their foreign personnel, clarifying activities permitted or prohibited under Chinese law.

Under the foreign exchange regulatory regime, domestic entities in China are required to follow specific regulatory procedures when making overseas direct investment such as investing in overseas stocks, unlisted company equities, private funds and wealth management products. These investments must be carried out through prescribed entities and channels, and under regulatory procedures such as: (RMB) Qualified Domestic Institutional Investors ((R)QDII); Qualified Domestic Limited Partnership (QDLP)/Qualified Domestic Investment Enterprise (QDIE); Shanghai-Hong Kong Stock Connect; China Bond Connect; Mutual Recognition of Funds (MRF) between the mainland and Hong Kong; and Cross-border Wealth Management Connect.

Shenzhen-HK private fund connect

In July 2023, the Shenzhen Municipal People’s Government released the Printing and Distributing and Implementing Plan for the Opinion on Financial Support for the Comprehensive Deepening of Reform and Opening Up of the Qianhai Shenzhen-Hong Kong Modern Service Industry Co-operation Zone. It is an effort to explore the Shenzhen-Hong Kong Private Fund Connect mechanism, enhance the efficiency of the Qianhai Co-operation Zone’s pilot scheme involving QDIE, QFLP and PFM WFOE, and reduce the access thresholds for Hong Kong investors.

It will gradually expand the investment scope and streamline the application process, enabling entities with QFLP qualifications to directly apply for QDIE qualifications. It will also allow entities to apply for both QFLP and QDIE qualifications, or to commence QDIE and PFM WFOE operations.

EF account

In August 2023, the Guangzhou branch and Haikou sub-branch of the People’s Bank of China both released a draft for public comments on the multifunctional free trade (electronic fence) account business in the Greater Bay Area (GBA) and Hainan Free Trade Port. The term “electronic fence” (EF) refers to a versatile free-trade account that entails financial institutions offering separate accounting services for local and foreign currency accounts with consistent rules.

The proposed regulations allow for unrestricted fund transfers between EF accounts and overseas accounts, as well as between non-resident accounts (NRAs) and EF accounts. However, transfers between EF accounts and ordinary accounts held by domestic residents are considered cross-border transactions, following the “negative list + quota management” principle.

Wealth management connect

Following the launch of the pilot Cross-border Wealth Management Connect Scheme in the GBA, more than 60,000 individual investors participated between September 2021 and 2023.

On 28 September, seven departments, including the People’s Bank of China and financial regulators in Hong Kong and Macau, enhanced the scheme by improving investor eligibility criteria, expanding the scope of products and raising the investment quota. It is believed that the introduction of the implementation rules and business guidelines will significantly enhance the interconnection of the financial market in the GBA and bolster the growth of the cross-border asset management business.