The refusals come at a time when Chinese local authorities, embarrassed by the allegations, have been cracking down on short-sellers' researchers, shutting off access to company disclosure filings and sometimes harassing and even jailing research teams conducting due diligence within China. The SEC, for its part, asked the judge in the Deloitte case for a stay until this coming January, to see if it could work out some kind of solution with its counterparts at the CSRC.
Last week's decision to file charges against all five top global audit firms in China appears to signal an end to the SEC's patience. In its court filing, the SEC expressed frustration, noting that since 2009, the CSRC had refused to provide any meaningful assistance on 21 information requests arising from 16 securities investigations into U.S.-listed Chinese firms. The Chinese, it has concluded, are simply stonewalling.
While the details may seem arcane, the ramifications can hardly be overstated. Chinese auditors could face financial penalties, but they could also be disqualified from conducting SEC audits. If Chinese auditors get de-registered, U.S.-listed Chinese companies won't be able to find anyone to sign off on their audits, leading all of these firms to have their shares forcibly delisted, en masse, from U.S. markets. Shareholders would still own their shares, but those shares would be much harder to buy and sell, making them worth considerably less.
Some domestic players think China has outgrown its need to rely on U.S. capital markets. State-owned China Development Bank has put together a $1 billion war chest to help buy out U.S.-listed Chinese companies and take them private. Rather than caving in, their defenders argue, Chinese companies should come home and relist on domestic or Hong Kong stock exchanges, where they might command even higher valuations. Given that China's Shanghai Index is down two-thirds from its peak five years ago, and with Hong Kong regulators raising similar concerns about fraud, this path may not be as easy or as promising as it sounds.
Chinese companies won't be the only ones affected if SEC-qualified Chinese auditors go the way of the dodo. Plenty of multinationals listed on U.S. markets, many of them headquartered in the United States, have substantial parts of their business in China. Yum Brands takes in 44 percent of its revenues from the KFC and Pizza Hut outlets it has in China. Car sales in China account for 34 percent of General Motors' profits. These numbers matter to their global bottom lines, and to sign off on their SEC filings, their lead auditors in the United States need a PBAOC-registered Chinese auditor to vouch for them. If no such auditors exist, these companies have a problem. (There may be clever workarounds, such as dividing up the work among so many auditors that none of them is vouching for a "substantial" part of the business, but it's a costly and cumbersome solution. Nor is it clear if easy loopholes can be created for multinationals with substantial China operations without tearing a big hole in the fabric of U.S. securities regulation).
The SEC, though, may feel it has no other option. China's constraints effectively place Chinese companies completely beyond the reach of U.S. securities laws. If this were just a theoretical concern, there might be room to maneuver. But with dozens of Chinese stocks traded on U.S. exchanges dragged down by fraud allegations, costing investors billions of dollars in losses, the SEC has to act. And each action it takes brings the United States and China one step closer to an ugly financial divorce.