Open Sesame: The Myth of Alibaba's Extreme Corporate Governance and Control

10 Brooklyn Journal of Corporate, Financial & Commercial Law 437-471 (2016)

36 Pages Posted: 3 Nov 2015 Last revised: 9 Jul 2016

See all articles by Yu-Hsin Lin

Yu-Hsin Lin

City University of Hong Kong (CityUHK) - School of Law; City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law

Thomas Mehaffy

University of Oregon - School of Law

Date Written: May 12, 2016

Abstract

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in the U.S capital market. A significant number of these companies have employed a novel but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control structure, usually in the form of dual-class shares, helps founders or controlling shareholders maintain control post-IPO with less equity contribution. Around 30 percent of U.S.-listed Chinese companies adopted a dual-class share structure or similar mechanism to enhance insider control. The percentage is much higher than that of U.S. public companies, which is about 6 percent. This Article uses Alibaba as a case study to analyze the legal challenges posed by the VIE and disproportional control structures. Specifically, it dissects the structure of the VIE and sheds important light on inherent legal and governance risks associated with the VIE structure, along with potential policy solutions to protect investors and reduce information asymmetry. Similar to most U.S. high-tech companies that adopt dual-class share structures to maintain control by founders, Alibaba grants a partnership, consisting of its founders and executives, an exclusive right to nominate a majority of its directors. Furthermore, Alibaba implements various anti-takeover measures to strengthen insider control, many of which are considered detrimental to the interests of minority shareholders. Such excessive insider control presents a puzzle as to the success of this world’s largest IPO and casts doubt on the long-debating issue of whether corporate governance really matters. In this article, we argue that the idiosyncratic value brought by a charismatic founder-executive—in this case, Alibaba’s Jack Ma—together with voluntary commitments made by Ma himself in Alibaba’s prospectus, help mitigate the potential abuse inherent in disproportional insider control structure. However, the success of such structure hinges on the reputation and commitments of specific founders and may not function to the benefit of investors in the long run.

Keywords: Alibaba, Corporate Governance, Alibaba Partnership, Disproportional Control, Dual-Class Shares, VIE Structure, Anti-takeover Provisions

JEL Classification: K22, M13, G32, G34

Suggested Citation

Lin, Yu-Hsin and Mehaffy, Thomas, Open Sesame: The Myth of Alibaba's Extreme Corporate Governance and Control (May 12, 2016). 10 Brooklyn Journal of Corporate, Financial & Commercial Law 437-471 (2016). Available at SSRN: https://ssrn.com/abstract=2685512

Yu-Hsin Lin (Contact Author)

City University of Hong Kong (CityUHK) - School of Law ( email )

Tat Chee Avenue
Kowloon
Hong Kong

HOME PAGE: http://www6.cityu.edu.hk/slw/people/people_Yu_Hsin.html

City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law

83 Tat Chee Avenue
Room P5300, 5th Floor, Academic 1
Kowloon Tong
Hong Kong

Thomas Mehaffy

University of Oregon - School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States

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