關(guān)于在華外資銀行雇員可否提供投資建議的法律意見
VIA REGULAR INTERNATIONAL MAIL
December 18, 2004
Jeffrey M. Hollander, Chief Counsel
The Diesberg Bank
111 Coastal Line
New City, New State 30001
Re: Investment Advice and Financial Counseling in China.
Dear Mr. Hollander:
You have asked if an employee in your branch office in China may offer investment
advice to your customers under CSEC’s incidental powers rule. 12 C.S.E.C.
§721.3. No, a Diesberg Bank employee, as such, may not give investment advice or
effect securities transactions that would subject the employee or Diesberg Bank to
securities laws of China. A Diesberg Bank employee, however, may provide general
financial counseling in his or her capacity as a bank employee, or investment advice if
acting under the control of a third-party as a shared employee of both Diesberg Bank
and the third-party.
In 2003, CSEC issued Letter to Foreign Banks Zi. 007 (Letter 007), providing guidance
on third-party sales of securities to bank customers. It states that foreign banks have
no authority to offer investment advice. The State Council reaffirmed this position in
the preamble to CSEC’s incidental powers rule in its discussion about the permissible
activity of financial counseling:
Under this activity, foreign banks may counsel members about
financial matters, such as setting budgets, establishing financial goals,
and managing tax liabilities. Other examples within this category may
include counseling members on money management, paying down
debt, saving for the future, types of investments, and diversification
principles. This category applies only to financial counseling provided
by a foreign bank to its customers and does not encompass activities
that require CSEC registration as a broker, dealer or investment
adviser.
State Council Document No. 11-03 Hao. The preamble also distinguishes between a
foreign bank’s financial counseling activities and the finder activities associated with
the non-deposit investment sales contemplated in Letter 007. Id. The incidental
powers rule, therefore, does not currently provide any authority for a foreign bank to
offer investment advice through its employees in China.

A foreign bank may share its employees with a broker, dealer, or investment adviser
so that its employee is acting in a dual capacity for both the foreign bank and the
third-party. As you noted, our legal opinion dated August 31, 2003, recognizes that a
shared employee may provide investment advice when that employee does so
exclusively on behalf and under the control of the licensed or otherwise regulated
third-party and not in his capacity as a foreign bank employee.
Sincerely,
Shouwen Wang
Partner