投資澳大利亞自然資源:機遇和挑戰

Investment in Australian Natural Resources–Challenges and Opportunities

2014/03/13-17:09      瀏覽:  次
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作者: Damien Clarke Susan O'Rourke
    中國公司要想在澳大利亞成功投資,第一步就是要獲得澳大利亞外國投資審查委員會(FIRB)的批準。但這不是最主要的障礙。澳大利亞政府歡迎外國直接投資,包括來自中國的投資。

投資澳大利亞自然資源:機遇和挑戰

   |編|者|按|:澳大利亞自然資源投資熱潮

  近10年來,澳大利亞一直是中國最大的鐵礦、銅礦、鎳礦等自然資源的供應國。

  中國企業在澳大利亞的礦業等自然資源的投資可以追溯到改革開放的20世紀80年代。在過去10年間,國際大宗商品價格一路扶搖直上,令中國企業在最近五年間競相赴澳投資礦業。在這輪澳大利亞礦業投資熱潮中,中國寶鋼集團、武鋼集團、鞍鋼集團、五礦集團、中信泰富、中國有色礦業集團等鋼鐵、有色巨頭悉數到場。

  不過,最近一年大宗商品價格下跌已經讓不少投資者暫緩在澳投資的步伐。2013年9月,瑞士銀行(UBS)經濟學家Scott Haslem警告稱:“近來大宗商品價格的下滑以及多個礦業項目進展的趨緩表明,礦業資本支出已經達到峰值,未來或將走下坡路。”

  投資澳大利亞自然資源是天堂還是地獄?什么是最大的挑戰?這些阻礙如何破解?本文作者用他們多年的律師執業經驗給出了答案。他們在執業生涯中,最擅長的領域之一就是自然資源行業的收購。

  摘要:自2005年,澳大利亞已成為了中國對外直接投資(ODI)的首選目的地之一。其吸引力在于其較低的主權風險、穩定可靠的制度體系以及其資源稟賦和地緣優勢。

  中國公司要想在澳大利亞成功投資,第一步就是要獲得澳大利亞外國投資審查委員會(FIRB)的批準。但這不是最主要的障礙。澳大利亞政府歡迎外國直接投資,包括來自中國的投資。在2011~2012財年,FIRB批準了10,884項外國投資計劃,其中4,752項來自中國。

  中國企業面臨的更大挑戰是交易前的盡職調查和交易后的整合。這兩方面對于最終取得成功投資回報至關重要。帶來這些挑戰的最根本原因是兩國政治制度、歷史和社會的差異。短期來說,可以通過找到正確的人獲得幫助來克服這些困難,但從長遠來看,提高業務的交流與合作才是真正的解決方案。

  隨著中國不斷推進的工業化和城市化進程,以及中國公司全球化程度和復雜程度的不斷增加,將會有越來越多的中國公司在澳大利亞投資,并將取得更大的成功。

 

  澳大利亞:中國對外直接投資優選目的地

Australia: a priority destination for chinese ODI

  2005~2012年年末,中國對澳投資一直攀升。至少截至 2012年年末,澳大利亞依然是中國對外投資的優選目標。

At the close of 2012 Australia was still a priority destination for Chinese investment and held its top ranking as the most significant recipient country of accumulated Chinese ODI since large scale investment began in 2005.However, by 2012, trends also showed that Chinese ODI was becoming increasingly globally diversified.

Australia's attractiveness as an investment destination is buoyed by factors such as low sovereign risk and stable and reliable institutional systems coupled with its natural resource endowment and geographic proximity. Notwithstanding these factors, due to its political nature and wide reporting by the media, most investors perceive that approval by the Australian Government (through FIRB) is a major hurdle for Chinese investment in Australia.

By the end of 2012, Chinese accumulated investment into Australia exceeded USD$50 billion, with mining accounting for 72.6% and gas for 17.5% of total investment.

Chinese direct investment inflows into Australia in 2012 were USD$11.4 billion but below the top position achieved by Canada – due to the completion of the USD$15.1 billion CNOOC Nexen oil and gas deal.

Another trend emerging in 2012 was that investment varied away from mining, which was 48%, to 42% in gas, 3% in agriculture and 2% in renewables. Another variation on historical data trends was that a greater share of investment was by private investors (13% in value) compared to historically State-Owned Enterprises, which accounted for 97% by value. A further variation was that the geographic distribution moved from the trend of 51% in Western Australia and 33% in Queensland to Western Australia of 31.6% and Queensland at 30.5%.

China is Australia's number one trade partner and remains a stable supplier of high quality, high volume natural resources which are needed as China's urbanisation trend continues. Annual trade volume exceeds AUD$100 million.

  中國在澳大利亞投資面臨的兩大問題:獲得外國投資審查委員會批準和交易完成后的業務管理。

The two main issues for Chinese investment in Australia is obtaining clearance from FIRB and business management post transaction.

     在澳大利亞投資,最大的挑戰是交易前的盡職調查和交易后的整合,而不是卡在外國投資審查委員會( FIRB)手里。

FIRB clearance is integral to inbound investment as it is the first step for a foreign person to invest in Australia. However, the Australian Government generally welcomes foreign investments, including Chinese investment, as long as the proposed investment is in line with Australia's 'national interest'. The 'national interest' is examined from six aspects: national security, competition, other government policies such as those concerning tax and environment, impact on the general economy and community and character of the investor. During the 2011~2012 financial year, FIRB approved 10,884 cases of investment proposals from foreign persons, of which 4,752 were from China. Early this year, FIRB approved the proposal by China Investment Corporation backed Chengdu Tianqi to take over Australian company Talison Lithium. This may defy the perception that Chinese investments, especially those from Chinese State-owned Enterprises (SOEs) are discriminated against in Australia.

Some bigger challenges Chinese companies investing in Australia may face is conducting effective due diligence before investing as well as effective business management post transaction. Both are critical to the return on the investment, which is in most cases the ultimate goal of investing.

Most Chinese investments have successfully obtained FIRB approval, but not all have had financial success. There are many cases of reported investment losses, including the CITIC Pacific (CITIC) investment in Western Australia – the Sino Iron project. The project was initially estimated to cost US$2.5 billion and start shipping iron in 2009. In May 2013, CITIC Pacific announced that the first iron ore shipment would be delayed until the second half of the year, due to the frequent interruptions from 'technical and operational issues'. By this time, the project's budget had blown out to $US8 billion. The causes of such massive cost overruns and significant delays were substantially a result of a failure to understand the important issues associated with investing in Australia and conduct appropriate due diligence. For example, when making the original cost estimate, it was assumed that it could bring Chinese engineers and workers to build the mines; it also failed to take into account the need to build an expensive desalination plant for the project and compliance costs associated with prescribed environmental standards in Australia.

The above case demonstrates that the Australian political, legal and social systems are complex and often fundamentally different to those in China. It is critical for Chinese companies considering investment in Australia's resource sector to understand and conduct analysis of the following factors:

The applicable laws (適用法律). The Australian legal system is two tiered, i.e, there are Federal laws and State laws. The state governments are responsible for approving a mining project located within their State or Territory, as the minerals are legally owned by the States in which they are located, but there are circumstances in which Federal approvals are required.

Environmental risks (環境風險) . Environmental risks apply before project operation is achieved and passed. A rigorous compliance program is necessary. Undertaking a regulatory risk analysis is fundamental.

Native title (原住民地權), Native title is another sensitive topic. Australian indigenous people have a special attachment to certain Australian land, to which they claim traditional ownership. Conducting mining activities in an area that involves native title claims may be opposed by the indigenous community and require settlement of claims before mining can proceed.

Access to infrastructure (基礎設施使用權), The Australian Government do not always provide infrastructure for commercial activities. Existing infrastructure facilities may have no available capacity or their owner may resist granting access. Given the significant costs required for construction of new infrastructure, commercial viability of the proposed investment may be fundamentally affected depending on the availability or not of infrastructure.

Labour cost (勞動力成本), To maximise job opportunities for Australian citizens, the Australian Government sets high standards for introducing foreign labourers. Generally, to be eligible to work in Australia, workers need to possess skills in shortage in Australia and English proficiency. Approval of investment in Australia by a foreign person does not automatically permit the foreign person to bring in its own work force.

These issues, if not well understood and addressed prior to and during the investment, will likely cause delays, cost overrun and a decreased financial return investment.

In post investment business management, Chinese companies generally find it challenging to deal with local laws and regulations, the need for consultation and on the approval from multiple government levels, agencies and local communities. Corporate Governance is another challenge due to the fact that it is relatively new in China and the Chinese system differs greatly to that in Australia. Listed companies are also required to comply with onerous continuing disclosure obligations which Chinese investors are not used to. These challenges, if not well handled, could result in investment failure and reputation damage. The latter will have long term impact on Chinese companies as a group.

   面對這些挑戰,有一個共同的解決方法 —人盡其才,才盡其用。

Solution to these challenges is one and the same – getting the right people in place.

Chinese companies, especially SoEs, tend to appoint Chinese directors and senior managers to their controlled entities in Australia from among those holding managerial position within the parent company. This probably reflects the relationship-based business culture in China. Although these appointees can represent the parent company's interest in the Australian entity well, there can be problems relating to the difficulty of communication between Chinese and foreign directors and senior managers, due to language barrier as well the lack of common cultural value. For example, it is reported recently that tension between Yancoal's Australian management and its Chinese-controlled board has caused the departure of its former CEO.

In addition, Chinese directors and senior managers may not have acquired the knowledge and skills in dealing with local political, economic, legal and social issues.

The experience of Hanlong seems to offer a better alternative. Hanlong has a majority stake in Moly Mines, but a minority of directors in the board. Both the chairman and managing director are non-Chinese. However, the performance of Moly Mines was ranked the second among the four Chinese-controlled entities.

It is important to keep in mind that when it comes to company directors and senior managers, it is their local knowledge, skills and cultural awareness, rather than their nationality or ethical background, that are important. Chinese executives with Australian business experience could be a source of talent for Chinese companies to select directors or senior managers for their Australian subsidiaries.

The points raised in this article are only illustrative of challenges Chinese companies face in investing in Australia. They are far from exhaustive. The root cause of these challenges is the difference in political systems, histories and societies between the two countries. This difference can and will be reduced over time with the increased engagement between the two countries on all fronts.

The outlook for Chinese direct investment in Australia remains positive for the Year of the Snake and beyond. The ongoing industrialisation and urbanisation in China will continue to generate increasing demand for energy and resources from Australia, which will provide further opportunities for Chinese investment in Australian resource sector.

 

 

 

Damien Clarke

  澳大利亞 McCullough Robertson律師事務所的合伙人和資源產業團隊負責人。他是公司法和稅法專家,專注于礦產資源行業,以設計并搭建資源行業中有關資產開發和所有權復雜結構而聞名。他的團隊被亞太法律 500強稱贊為“昆士蘭資源領域的杰出團隊”。

Susan O'Rourke

  澳大利亞 Four Winds法律有限公司常務董事,此前曾是 McCullough Robertson律師事務所的中國業務主管合伙人,專注于礦產、能源、技術、農業和融資領域。 25年多的執業生涯中,代理過中國企業在澳洲并購的多項重大交易。 Susan是澳中商會的董事會成員和副主席,澳中商會資源委員會的主席。

McCullough Robertson律師事務所

  McCullough Robertson律師事務所是澳大利亞昆士蘭州最大的律師事務所。該律所為在澳大利亞投資的中國投資者提供接觸澳大利亞商業和政府領導人的機會,并提供高質量的和注重商務法律建議。詳見www.mccullough.com.au

本文為CGG走出去智庫版權所有,未經過允許不得轉載。如需轉載請聯系[email protected]

文章作者

Damien Clarke澳大利亞McCullough Robertson 律師事務所合伙人
Susan O'Rourke澳大利亞Four Winds法律有限公司常務董事

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