For many people, their main wealth management strategy involves purchasing financial products promoted by banks. Since the first impact of the global financial crisis was felt in 2008, the performance of different bank-issued financial products has varied greatly. Some Chinese investors have lost money as a result of buying financial products promoted by foreign-funded banks, and some have even sued those banks for compensation. Since financial products are generally quite complex, hurt investors often make their claim against a bank on the grounds that the bank failed to give clear notice about the risks inherent in the financial product which it was promoting and that the bank induced the investor into purchasing a product while concealing important facts.
Although claims of this kind are generally for small amounts, their impact on the banks concerned should not be underestimated. The dispute between the bank and the investor is often quite intense. For these reasons, Chinese financial regulators are very concerned about the potential impact of such cases on the larger financial order. Another issue is that cases involving small claims are usually tried in local courts which do not have expert knowledge of complex financial products. This means that the relevant courts take a cautious approach to the conduct of such trials and the resulting court decisions reflect this cautious attitude.
On February 18, 2008, at the recommendation of a wealth manager at the Oriental Plaza sub-branch of ABN AMRO (China) Co., Ltd (“ABN AMRO”) a Chinese investor decided to invest in a structured deposit (Phase III) product linked to the ABN AMRO/AIG “Chinese Agricultural Products Gross Return Index” (the “structured-deposit-based financial product”) . The principal invested in this particular product was guaranteed if the investor maintained its investment until maturity. On February 19, 2008 the investor deposited AUD 50,000 into an account which he had opened with ABN AMRO. Then, on February 21, 2008, the investor went to ABN AMRO to complete the formalities for purchasing the structured-deposit-based financial product. The product did not perform well during the developing global financial crisis. Therefore, on September 24, 2008 the investor filed an application for redemption of his investment and accordingly, ABN AMRO commenced the procedures for redemption. On October 16, 2008 ABN AMRO converted and settled the investor’s redeemed funds in Chinese yuan renminbi at the investor’s request.
By then the investor had lost RMB 142,621 which included a loss of RMB 40,565.64 due to his early redemption decision and RMB102,040 due to the conversion of Australian dollars into Renminbi.
On November 10, 2008, the disappointed investor filed a lawsuit with the Dongcheng District Peoples’ Court in Beijing, claiming compensation from ABN AMRO for the loss which he had suffered on the basis of alleged fraud, concealment of important facts and breach of contract by ABN AMRO. In 2009, the Dongcheng District People’s Court dismissed the investor’s claim emphasizing that there are risks associated with wealth management products and setting out the duties and obligations that banks should observe when performing contracts for fiduciary wealth management. This case has served as an important reference for similar cases which have subsequently arisen.
Was ABN AMRO’s structured-deposit-based financial product valid under PRC law?
Article 46 of the Interim Procedures for Administration of Personal Wealth Management Business of Commercial Banks (the “Procedures”) promulgated by the China Banking Regulatory Commission in September 2005 states that:
“commercial banks shall receive approval from the China Banking Regulatory Commission before they carry out the following wealth management services for individuals: 1) earning-guaranteed financial products; 2) new investment products designed on an earning-guaranteed basis for personal wealth management business; and 3) other personal wealth management services subject to approval from China Banking Regulatory Commission”.
Article 51 of the Procedures states that “commercial banks do not need to obtain approval for other personal wealth management services but they must report the same to the China Banking Regulatory Commission or its local agency in a timely manner pursuant to the applicable regulations”.
In the case mentioned above, ABN AMRO’s structured-deposit-based financial product did not fall within the meaning of “investment products designed on an earning-guaranteed basis” as defined in the Procedures. However, in his complaint, the investor challenged the legality of ABN even issuing the product in China on the basis of an allegation that ABN AMRO had only filed the product with the banking regulatory agencies in Shanghai and Beijing and had not received approval for the product. He further alleged that the banking regulatory agencies did not provide any acknowledgement or receipt after they had received the product filing from ABN AMRO.
In answer, ABN AMRO submitted a bound volume to the court, which contained all of the recorded documents filed with the two banking regulatory agencies in Shanghai and Beijing, with the date of filing and the signatures of the handling clerks at the two banking regulatory agencies evident on the face of the documents. The court admitted this evidence after verifying it with the two agencies concerned and, as a consequence, accepted that the structured-deposit-based financial product issued by ABN AMRO was valid and legal, observing that the procedures for reporting to the China Banking Regulatory Commission’s local agencies had been timely completed.
Did the bank give clear notice about the possible risks associated with the structured-deposit-based financial product when promoting it to the investor?
Because of the complex structure of wealth management products, most courts in China suspect that banks’ wealth managers overstate the potential earnings capacity and conceal the risks associated with their products while misleading clients into purchasing high-risk products. As a result, courts tend to sympathize with individual investors and this approach reflects the most common approach taken in legislative and judicial practice in China generally. For instance, when interpreting the insurer’s obligation under the PRC Insurance Law to “make clear explanation” of the “disclaimer” in an insurance policy, the Supreme People’s Court has decided that the disclaimer may not be deemed valid unless the insurer has clearly and expressly explained to the policy holder or its agent, either orally or in writing, the definitions, content and legal consequences of or relating to the disclaimer in addition to including notices to the same effect in the insurance policy.
With this approach in mind, banks responding to similar lawsuits in China need to be able to adduce evidence sufficient to prove that they have given express notice about the specific risks associated with the particular wealth management products which they have promoted to each client on each occasion. In the case above, ABN AMRO had in fact elaborated on the clauses contained in the contract for the structured-deposit-based financial product and had also expressly drawn the investor’s attention to notices in related documents which illustrated the risks associated with that particular product in language understandable to persons who are not financial professionals (in this case in particular, concerning risks to the principal investment and foreign exchange rate risks in the context of an early redemption by the investor). At the same time, ABN AMRO had also presented evidence to the court that the investor had delivered responses to an “Evaluation Questionnaire for Investments by the Client” and a “Suitability Questionnaire” provided by the bank. In this way ABN AMRO was able to prove that it did give detailed notice about the risks associated with the particular structured-deposit-based financial product in question when promoting the product to the investor in that particular case. As a result, the Dongcheng District People’s Court concluded in its final judgment that the investor had purchased the product voluntarily on the basis of a full understanding of the risks associated with the product.
Did the bank induce the investor into early redemption?
In performing its fiduciary wealth management service, ABN AMRO had sent the investor monthly statements and reports through express courier delivery service and had properly maintained records of each statement and report. These documents showed that even though the product was not performing well, ABN AMRO had, on a monthly basis, truthfully informed the investor about the performance and net value of the product as well the risks associated with an early redemption .
By contrast, the investor had alleged in his complaint that he chose early redemption as a result of demands and inducements received from ABN AMRO’s staff. In answer to these allegations, ABN AMRO presented a notarized record of telephone calls between the investor and ABN AMRO’s wealth manager, which showed that the investor had chosen early redemption on the basis of his own judgment of the condition of the international financial market at the time, despite knowing that his principal investment was not guaranteed unless he held the product until maturity. In addition, notarized evidence showing the variations in the Australian dollar’s exchange rate and in the product’s value after the investor redeemed his investment proved that it was the early redemption decision by the investor which had caused the investor’s loss. As a result, the court ultimately dismissed the investor’s claim.
Given that the financial derivative market in China is not yet mature, banks should give careful thought about how wealth management products that are promoted in China can be designed and advertised well, and how their fiduciary obligations to customers in China can be performed well. Banks may be exposed to legal risks and held liable for the risks inherent in the products which they promote if they have not paid careful attention to these matters and have not strictly adhered to applicable regulations in some aspects of their services. After all, customers entrust their assets to banks because they look at banks as trustworthy financial experts. It is true that investments do come hand in hand with risks, but banks always have an obligation to keep risks within a reasonable limit.
【Wang Fengli is a partner and Wang Jian’gang is a lawyer from the litigation and arbitration team in the head office of King & Wood PRC Lawyers in Beijing.】