By Aruna Viswanatha and Rachel Armstrong
WASHINGTON/SINGAPORE, Dec 4 (Reuters) - U.S. regulators have
charged the Chinese arms of the world's five top accounting
firms with securities violations, raising tensions in a
regulatory standoff which experts say could kill off U.S.
listings for Chinese firms if not resolved.
Monday's move indicated China was refusing to yield in talks
with the United States over access to Chinese audit papers,
trying to keep foreign regulators off what it sees as its turf.
The Securities and Exchange Commission (SEC) wants the firms
to supply documents relating to audits of U.S.-listed companies
suspected of possible wrongdoing, but the audit firms say they
are prevented from doing so by Chinese state secrecy laws.
"I think China has determined that it does not want to
cooperate in this way. It believes this is an impingement on
China's national sovereignty, and it's just too far for them to
go," said Paul Gillis, a professor at Peking University and
author of the China Accounting Blog
"They want the U.S. regulators to rely on the work of
Chinese regulators, and that has been their position and
apparently continues to be their position," said Gillis.
The SEC began proceedings against the Chinese affiliates of
Deloitte, KPMG, PricewaterhouseCoopers (PwC), BDO and Ernst &
Young. The agency on Monday also moved to pursue a case they had
put on hold against Deloitte.
It was the SEC's widest enforcement effort yet to procure
documents in connection with probes of possible accounting fraud
of U.S.-listed Chinese companies, however lawyers voiced doubts
over whether it would help them make a breakthrough.
"Simply swinging the hammer of enforcement, while effective
at garnering headlines, will likely not be enough to achieve the
SEC's goal," said William McGovern, a partner at Kobre & Kim in
Hong Kong and a former SEC attorney.
The SEC, which is seeking documents in investigating
possible wrongdoing at nine China-based companies, said an
administrative law judge would schedule a hearing to determine
potential sanctions against the accounting firms' Chinese arms.
It was unclear whether the SEC's move would result in
financial penalties and discourage the firms from working with
certain Chinese companies, or it was designed to force a
breakthrough in the larger negotiations.
ULTIMATE SANCTION
Peking University's Gillis said if no diplomatic solution
could be found, the SEC might ultimately suspend the Chinese
firms' right to practice - a sanction that could in turn mean
that their U.S.-listed client companies would have to de-list.
"That would mean they cannot audit U.S.-listed public
companies," he said.
The SEC said in July it was in talks with Chinese regulators
on cross-border cooperation, including access to documents, but
Monday's action suggested it was unhappy with progress.
U.S. accounting regulator the Public Company Accounting
Oversight Board (PCAOB) has now reached agreements with almost
every major economy aside from China on being allowed to inspect
foreign auditors of U.S.-listed companies.
"Firms that conduct audits knowing they cannot comply with
laws requiring access to these work papers face serious
sanctions," SEC enforcement director Robert Khuzami said in a
statement announcing the action.
The accounting firms called for regulators to negotiate a
solution, noting that U.S. and Chinese laws were in conflict.
"This action involves an issue that needs to be resolved
between the U.S. and China," PwC China said in a statement.
Deloitte said it was unfortunate the two sides could not
find common ground but "we remain hopeful that a diplomatic
agreement can be reached".
China affiliates Ernst & Young Hua Ming and KPMG Huazhen
said they too still hoped for an agreement. BDO did not
immediately respond to a request for comment.
Top accounting firms operate as global networks of legally
separate member firms in each country, so all member firms are
not jointly liable for auditing work done in any one country.
Lawyers say there is still a queue of Chinese companies
eager to tap U.S. capital markets, despite the problems faced by
many of their peers that went before them.
"I would estimate that there are probably 30 to 40
China-based companies in some stage of pursuing a U.S. listing
at this time," said Alan Seem, a partner at law firm Shearman &
Sterling in Beijing.
Separately, Canada's securities regulator said it believed
Ernst & Young had breached the Ontario Securities Act in its
audits of Sino-Forest Corp, a China-focused forestry company
which collapsed after being accused of accounting fraud.
Ernst & Young Canada said in a statement it was confident
its work "met all professional standards".
Last year, the SEC took Deloitte to federal court to try to
force it to turn over documents in connection with an
investigation into China's Longtop Financial Technologies Ltd.
In July, it sought a six-month delay in that legal battle,
citing negotiations with Chinese regulators.
On Monday, the SEC said those talks had failed and it filed
a motion to proceed with the case. It also renewed efforts to
obtain the documents related to the Longtop audit.
The PCAOB, the U.S. accounting watchdog, recently completed
observations of Chinese inspections of auditors and expressed
optimism about talks over access to audit documents.
In a statement, PCAOB Chairman James Doty said his agency's
negotiations were proceeding on a separate track from the SEC.
If the agency's efforts do not lead to an agreement, "then
we will need to consider other alternatives", Doty said.
(Additional reporting by Dena Aubin and Aileen Wang)
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