Extraterritorial Jurisdiction of China’s New Securities Law: Policies, Problems and Proposals

Abstract

With the increasing internationalization of its securities market, China has recently introduced Article 2(4) of the 2019 Securities Law, in order to deal with the important issue of extraterritorial jurisdiction over cross-border securities transactions. While it represents an important development, the provision is couched in very broad terms, bringing uncertainties and difficulties to its application in practice. This article proposes a phased reform agenda for improvement: in the short run, the effect test under Article 2(4) should be clarified with more guidance; in the long run, China should go beyond the effect test to consider other relevant tests such as the conduct test and the transactional test. The recent high-profile case of Luckin Coffee is carefully studied to show the factors that China may consider in applying Article 2(4), including the test of national interests, the principle of international comity, and the issue of judicial recourse constraints.

Keywords: extraterritorial jurisdiction; securities regulation; Luckin Coffee case; Chinese securities markets; cross-border securities transactions

JEL Classification: K22; K33; F55