中美审计监管合作——SEC最新看法

（原标题：中美审计监管合作——SEC最新看法）

来源：公司与证券法点评

作者：大成北京 高级合伙人 李寿双

2022年4月2日，中国证监会修订《关于加强在境外发行证券与上市相关保密和档案管理工作的规定（征求意见稿）》，调整了其中最为重要的有关境外检查的规定。此后市场一直期待看到美国方面的反应，但是一直没有看到PCAOB或SEC的正式表态。

5月24日，美国SEC国际事务部主任YJ Fischer在International Council of Securities Associations (ICSA)年度大会上发表了题为“Resolving the Lack of Audit Transparency in China and Hong Kong”的致辞，详细谈及了这一重要议题，这篇讲话稿全文刊载在SEC官方网站上，虽然例行声明说仅代表其个人意见，但我们也可由此管窥美国SEC对此的最新态度。

Fisher说解决这个问题已经到了非常关键的节点（critical juncture），她在致辞强调了四个要点：1、在PCAOB注册登记的审计事务所必须向PCAOB提供审计底稿，任何声称因审计底稿载有国家安全资料而无法提供的主张都是可疑的；2、尽管美国和中国当局就审计检查和调查的问题正在进行富有建设性的磋商，但仍然有实质性问题需要解决，而且时间已经非常紧迫了；3、即使美国和中国监管当局近期达成协议，开始允许PCAOB在中国内地和中国香港进行检查和调查，也仅仅是满足PCAOB履行其法定职责的开始；4、如果发行人或中国相关主管机关希望，他们可以让那些他们认为过于敏感而无法遵守规定的中概股自愿退市，但是允许其他公司和审计事务所完全遵守PCAOB检查和调查程序要求，以使得其他中概股避免终止交易的命运。

对于第一点内容，Fisher强调，PCAOB的职责是评估审计师从业是否遵守了PCAOB制定的标准和规则，以及其他监管规定或职业要求，另外也会审查审计师的质控系统。在进行这些检查时，PCAOB工作人员主要关注收入确认、坏账准备、商誉损失计提，评估公司内控的有效性。PCAOB也只会要求审计师提供支撑他们意见的底稿。审计底稿一般包括：1、账簿及摘要；2、账目或交易流水；3、组织架构图及股权结构；4、支撑审计评估公司交易及管理层估计、判断等到审计证据；5、关于公司财务报告内控有效性的信息。有关国家安全的敏感信息不应该在审计底稿中出现，所以以国家安全为由拒绝提供审计底稿的主张是可疑的。

对于第二点，Fisher讲在Accelerating Holding Foreign Companies Accountable Act（《加速外国公司问责法》）通过后（目前尚未通过），外国公司问责法的3年期限会缩短为2年，类似阿里巴巴等企业在2023年起就可能终止交易。这一点可以结合其发言的第三点一并理解。Fisher在讲到第三点的时候说，即便PCAOB和中国主管机关达成协议（Fisher也说能否达成协议并不确定），也仅仅是开始。达成协议后，PCAOB需要确定其是否已经可以完全地进行检查和调查，然后再修改其决定（Determination）。PCAOB需要在年底做有关2021年情况的报告，而这需要几周时间去写报告，然后提交董事会通过，这意味着PCAOB最迟需要在2022年11月初完成检查和调查。这样才能使得PCAOB有机会在其于2022年底前发布的报告中得出积极结论。[1]按照Fisher的推算逻辑，如果加速版外国公司问责法生效，留给中概股只有2年时间，现在2021年已经出具了一份报告，过去了1年，在2022年底的报告出台时，如果仍然是负面结论，那么就连续2两年无法检查，则在2023年年报出来之后，中概股公司就会面临终止交易的命运，所以倒退过来在2022年11月初就必须完成令PCAOB满意的检查，再倒退就是必须很快达成协议才来得及。

第四点的意思则说如果中方（包括发行人自己或中国政府）认为哪些公司确实过于敏感，可以自愿退市，怎么决定当然取决于中方。美方愿意配合，包括如果中概股要离开美国市场，美国可以提供转换的便利。但是可以让能够完全符合规定的公司留下来，但是留下来的公司必须完全遵守PCAOB及美国的规定，美方不接受只能选择性检查或接受编辑之后的底稿。

以上是Fisher发言要点的简要摘编，大部分是原话或原意，少部分是我做的注释和解释。对于这一敏感问题，我不想去做过多评价，并附上发言的全文原稿，一并供参考。

[1]

PCAOB上一份报告是在2021年12月16日发布的。

原稿地址：

https://www.sec.gov/news/speech/fischer-remarks-international-council-securities-associations-052422

Resolving the Lack of Audit Transparency in China and Hong Kong: Remarks at the International Council of Securities Associations (ICSA) Annual General Meeting

YJ Fischer, Director, Office of International Affairs

Washington D.C.

May 24, 2022

Thank you, Ken, for that kind introduction. I am glad to be here with you today.[1] As I approach my first anniversary as the Director of the SEC’s Office of International Affairs, it is my pleasure to have this opportunity to share ideas with you on how best to carry out the goal of serving investors. Cooperation between regulators and the industry is critical to the SEC’s mission. I am impressed by the event that SIFMA has organized. The program over the last two days covers some of the most important global issues affecting the international securities industry, including cross-border regulation, crypto, sustainable finance, and, of course, China.[2]

Before I proceed, let me issue the standard disclaimer that the views I express today are my own and do not necessarily reflect the views of the Commission, the Commissioners, or other members of the Commission’s staff.

Today, I would like to focus on the recent regulatory developments related to the lack of US inspections of audits and investigations in China and Hong Kong, and the implications for continued trading of China-based issuers on US exchanges. For more than a decade, local authorities in those jurisdictions have hampered the Public Company Accounting Oversight Board’s (“PCAOB”) ability to obtain audit work papers and interview audit engagement personnel as statutorily mandated. This situation is untenable because, among other things, it exposes US investors to significant risks.

We are now at a critical juncture in the effort to resolve these audit access issues. About $1.7 trillion in securities of China-based issuers are listed on exchanges in the United States. These securities could face trading prohibitions in as little as two years, which means the issuers of those securities will no longer have access to US capital markets because they are not in compliance with regulatory requirements. Today, I am going to discuss how we got here, what is at stake, and what needs to happen for the securities of China-based issuers to remain listed and traded in the United States.

To this end, I want to underscore four main points in my remarks today:

First, PCAOB-registered public accounting firms must provide the PCAOB with access to their audit work papers, and, any claim that audit work papers cannot be produced because they contain national security materials is questionable at best;

Second, although there have been ongoing and productive discussions between US and Chinese authorities regarding audit inspections and investigations, significant issues remain and time is quickly running out;

Third, even if US and Chinese authorities reach an agreement in the near future to commence PCAOB audit inspections and investigations in China and Hong Kong—and I want to emphasize this point—such an agreement will only be the start towards satisfying the PCAOB’s statutory mandate; and

Finally, should the issuers or the relevant Chinese authorities wish, they can effectuate the voluntary delisting of China-based issuers that they deem “too sensitive to comply” with PCAOB requirements, but allow other companies and audit firms to comply fully with the PCAOB inspection and investigative processes, thereby allowing the remainder of China-based issuers to avoid potential trading prohibitions in the US.

Background

By way of background, we have a basic bargain in our securities regime that was established by the Securities Act of 1933 and the Securities Exchange Act of 1934.[3] The bargain was simple: investors get to decide what securities to invest in, and, in return, investors are entitled to receive complete and transparent information so that they can assess the risks associated with an investment. Towards this end, audited financial statements are a key requirement under the US disclosure regime.

Decades later, the Sarbanes-Oxley Act of 2002 was passed by a bipartisan majority in Congress in response to the financial scandals of the early 2000s by public companies such as Enron, Tyco, and WorldCom. Under Sarbanes-Oxley, the basic bargain was expanded to say this: if a company wants to issue securities to the public in the United States, its auditors must be subject to inspections and investigations by the PCAOB. Jurisdictions around the world understand and accept this basic bargain. The only outliers are China and Hong Kong.

Unfortunately, this situation poses serious risks to US investors. Over the last 10 years, US investors have significantly increased their exposure to companies based in China. According to the PCAOB, “[i]n the thirteen month period ended December 31, 2021, 15 PCAOB-registered firms in mainland China and Hong Kong signed audit reports for 192 public companies with a combined global market capitalization (U.S. and non-U.S. exchanges) of approximately $1.7 trillion.”[4] Yet, the PCAOB has never been able to conduct audit inspections of firms in Mainland China, despite efforts dating back to 2007.[5] In Hong Kong, the PCAOB has never been able to inspect any larger, network affiliates, and only inspected a few small firms before being blocked from inspecting all firms after 2010.[6] For more than a decade, Chinese authorities have taken actions and passed laws and regulations that impeded the PCAOB from obtaining audit-related documentation and information for its inspections and investigations.[7]

This begs the question, “Why are PCAOB audit inspections and investigations so important?”

Financial reporting based on high-quality, reliable disclosures is at the very core of our regulatory framework and the SEC’s mission to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation.[8] To achieve this goal, all issuers that access the US public capital markets must meet certain disclosure obligations and legal responsibilities, regardless of where they are based.

Audit inspections and investigations are critical to maintaining the integrity of our capital markets. When the PCAOB is prevented from fulfilling its statutory mandate, it exposes investors to significant risks.

The US capital market attracts companies from around the world not only because of its market depth and liquidity, visibility, efficiency, and brand-name enhancement, but also because of its reputation for integrity and honesty.[9] This reputation is driven by disclosure requirements, regulatory oversight, and, of course, enforcement. Moreover, there is extensive evidence showing that “non-U.S. companies experienced reduced cost of capital, increased liquidity, and increased visibility after cross-listing in the United States. One source of such benefits arises from these cross-listed companies subjecting themselves to the stricter U.S. legal environment and enhanced disclosure requirements to take advantage of the investor protection these systems provide.”[10] PCAOB inspections and investigations are designed to protect US investors and enhance market integrity by making sure that audit firms follow required auditing standards and rules.

As part of the inspection process, the PCAOB needs to review the registered public accounting firm’s audit documentation and interview the firm’s engagement personnel. This audit documentation, otherwise referred to as audit work papers, is the written record required by PCAOB standards as the basis for the auditor’s conclusions that provides support for the auditor’s report. Likewise, in situations where there may be violations of PCAOB rules and standards or relevant US federal securities laws, the PCAOB investigative team must be able to obtain the necessary work papers, documents, and information from firms and take testimony from audit firm personnel.

Given the importance of audit inspections and investigations to investor protection, in 2020, with bipartisan support, Congress said that it was time for all registered public accounting firms to comply with their obligations under Sarbanes-Oxley, and passed the Holding Foreign Companies Accountable Act (or HFCAA). The mechanics of the HFCAA are fairly straightforward.

First, the HFCAA directs the PCAOB to determine whether it is unable to inspect or investigate completely registered firms located in a foreign jurisdiction because of a position taken by an authority in that jurisdiction.

Second, the HFCAA directs the SEC to identify issuers that file annual reports that include an audit report prepared by auditors covered by the PCAOB’s determination.

Finally, after three consecutive years of an issuer being identified by the Commission under this process, the HFCAA requires the SEC to impose a trading prohibition on the securities of those issuers.

Since the HFCAA was signed into law, the PCAOB has determined that there are two jurisdictions—China and Hong Kong—where local authorities prevented the PCAOB from inspecting or investigating audit firms completely. And, in a largely administrative process, the SEC has commenced the process of identifying issuers that have filed annual reports with an audit report prepared by an audit firm in a jurisdiction subject to the PCAOB’s determination under the HFCAA. These issuers may face potential trading prohibitions and, ultimately, delisting as soon as 2024. As of May 20, 2022, the Commission had conclusively identified 40 such issuers.

Now that I have explained how we arrived to our situation today regarding China-based issuers, I will now turn to the four main points I want to highlight today.

Audit Work Papers Do Not Raise National Security Issues

First, any claim of national security concerns to justify a refusal to provide the PCAOB with audit work papers should be viewed with skepticism. The PCAOB is able to completely inspect and investigate its registered firms in more than 50 other countries.

Let’s talk about what is involved in an audit inspection. The PCAOB is required by law to assess the auditor’s compliance with PCAOB standards and rules, as well as other regulatory and professional requirements. In addition to reviewing an audit firm’s quality control system, the PCAOB inspection process includes a review of select issuer audit engagements. In conducting its inspection of issuer audit engagements, the PCAOB inspections staff might focus on a number of audit areas, including revenue recognition, allowance for credit losses, goodwill impairment, the assessment of the effectiveness of internal controls over financial reporting, and quality controls.

When the PCAOB conducts inspections, it reviews the audit firm’s work papers related to selected issuer audit engagements. Importantly, the PCAOB only requests materials from the audit firm that support the auditor’s opinion on the financial statements or the internal controls of the issuer, or the quality controls of the accounting firm.

As this audience likely knows, audit work papers generally include:

General ledgers and summaries;[11]

Schedules of accounts or transactions;[12]

Organizational charts, as well as investor and ownership information;[13]

Audit evidence that supports an auditor’s evaluation of corporate transactions and management’s estimates, judgments, and accounting of those transactions;[14] and

Information concerning the effectiveness of the company’s internal controls over financial reporting.[15]

Sensitive information pertaining to national security—and by that I mean the ability for the state to cater to the protection and defense of its citizenry—should not be in auditor’s files. This is why claims of national security have not been an issue with other jurisdictions.

Time Is Running Out

This brings us to the second point, which is that time is running out for resolving audit issues involving China and Hong Kong. After the SEC adopted amendments to finalize rules implementing the HFCAA in December 2021,[16] both houses of Congress passed legislation accelerating the HFCAA trading prohibition from three consecutive years to two consecutive years. Under this accelerated timeline, almost 200 China-based companies like Alibaba, Yum China, Weibo, JD.com, and Baidu could face a trading prohibition beginning in 2023 when such issuers file their next annual report.

As discussed above, this situation did not happen overnight. After more than a decade of confidence-building measures and pilots, the PCAOB still faces serious challenges relating to the absence of a workable cooperative agreement with Chinese authorities for a regular cycle of inspections, restricted access to required information, and limitations as to engagement selection.[17]

An Agreement Is Only the Start

Third, even if the PCAOB and Chinese authorities reach an agreement on proceeding with inspections and investigations, we still have a long way to go. Let me explain.

The US and Chinese authorities are engaged in constructive discussions. If the PCAOB and Chinese authorities reach an agreement—and that is uncertain—the PCAOB would need to determine that it could complete inspections and investigations before it modifies its determinations.[18] All of this needs to happen before the end of the year when the PCAOB must reassess its 2021 determination on non-compliant jurisdictions.

Working backwards from the date of PCAOB’s 2021 determination and allocating a few weeks for PCAOB staff to draft the determination and for its Board to vote to approve it, that means the PCAOB would need to be able to complete inspections and investigations by early November 2022.

Deemed Too Sensitive to Comply

Finally, to mitigate the worst-case scenario under the HFCAA, some China-based issuers may opt to delist preemptively from US exchanges.

For Chinese authorities, the audit inspection and investigation issues seem hard to solve. There have been disagreements over matters such as redactions, selection of the audit engagements and potential violations to be examined, and access to firm personnel, audit work papers, and other information.[19] In 2016, the PCAOB started a pilot inspection of a China-based audit firm but it was prevented from completing it because Chinese authorities withheld or redacted information that the PCAOB needed. For more than 15 years, the PCAOB has been trying to access the necessary documents from China and Hong Kong-based audit firms. The PCAOB is only seeking access to audit firms that elected to register with the PCAOB, as well as the work papers of audits of issuers that have chosen to list on US capital markets. Yet, to date, every attempt to solve this problem has failed.

Perhaps then Chinese authorities should consider whether there is a subset of China-based issuers that are “too sensitive to comply” with the requirements for US listing and voluntarily delist those entities from US exchanges while bringing the remainder into compliance with PCAOB standards. This decision is of course up to the Chinese authorities.

The SEC has offered to work with Chinese authorities in whatever decision they make, including ensuring a smooth transition for China-based issuers if they have to leave US markets. I anticipate that this work will also involve educating retail investors holding securities of China-based issuers about the risks to their investments in the event the issuers are subject to trading prohibitions and delisting. To this end, investors should talk to their brokers or financial advisors, and investment professionals should talk to their customers, about the risk of continuing to hold these securities.

Conclusion

To conclude, I want to leave you with the following thoughts. While there has certainly been progress in the discussions on audit inspections in China and Hong Kong, significant issues remain. If there is one takeaway from my remarks today, it is this: even if an agreement is signed between the PCAOB and Chinese authorities, it will only be a first step. The PCAOB must be able to obtain sufficient cooperation and agreement from Chinese authorities so that the PCAOB Board can make a determination that it can inspect and investigate completely in China and Hong Kong.

It is also important to note that the PCAOB’s determination and identification of audit firms under the HFCAA was a jurisdiction-wide determination, and not a firm-specific determination. This means that the PCAOB must be able to access audit work papers from all, not some, China-based issuers and their registered public accounting firms, as well as conduct complete inspections and investigations in China and Hong Kong.

Thank you for having me here today. I am happy to take questions.

注释

【1】The U.S. Securities and Exchange Commission (SEC) disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This speech expresses the author’s views and does not necessarily reflect those of the Commission, the Commissioners, or other members of the staff.

【2】For purposes of this statement, “China” and “China and Hong Kong” are used interchangeably, and “China” refers to the People’s Republic of China, or PRC, which includes both Mainland China and Hong Kong.

【3】See Chair Gary Gensler, Testimony Before the United States Senate Committee on Banking, Housing, and Urban Affairs, (Sept. 14, 2021), available at

https://www.sec.gov/news/testimony/gensler-2021-09-14.

【4】PCAOB Website, China-Related Access Challenges,available at https://pcaobus.org/oversight/international/china-related-access-challenges (last visited May 19, 2022).

【5】See President’s Working Group on Financial Markets: Report on Protecting United States Investors from Significant Risks from Chinese Companies, p. 21, (July 24, 2020), available at https://home.treasury.gov/system/files/136/PWG-Report-on-Protecting-United-States-Investors-from-Significant-Risks-from-Chinese-Companies.pdf

【6】See PCAOB, HFCAA Determination Report, p. 10 and n.19, (Dec. 16, 2021), available at https://pcaob-assets.azureedge.net/pcaob-dev/docs/default-source/international/documents/104-hfcaa-2021-001.pdf?sfvrsn=acc3b380_4.

【7】See PCAOB, HFCAA Determination Report, p. 6-7, (Dec. 16, 2021), available at https://pcaob-assets.azureedge.net/pcaob-dev/docs/default-source/international/documents/104-hfcaa-2021-001.pdf?sfvrsn=acc3b380_4.

【8】See SEC Website, Division of Corporation Finance, Disclosure Considerations for China-Based Issuers, (Nov. 23, 2020), available at https://www.sec.gov/corpfin/disclosure-considerations-china-based-issuers#_edn2.

【9】See SEC Statement, Statement on the Vital Role of Audit Quality and Regulatory Access to Audit and Other Information Internationally—Discussion of Current Information Access Challenges with Respect to U.S.-listed Companies with Significant Operations in China, (Dec. 7, 2018), available at https://www.sec.gov/news/public-statement/statement-vital-role-audit-quality-and-regulatory-access-audit-and-other#_ftnref23.

【10】See id.; see, e.g., Karolyi. G. A., The World of Cross-Listings and Cross-Listings of the World: Challenging Conventional Wisdom, 10 (1) Review of Finance 99-152 (2006).

【11】 Audit work papers may include general ledgers, summaries or abstracts of significant contracts, memoranda (e.g., documentation of accounting positions or analysis), confirmations received from a third-party, correspondence, detailed schedules of accounts or transactions, audit programs, and letters of representation.

【12】Audit work papers may also include detailed schedules of accounts or transactions, which an auditor often compares to supporting evidence from the company under audit, such as invoices, bills of lading, purchase orders, bank statements, checks, and wires, etc. While the audit work papers generally include only the identification of items reviewed, the auditor may also decide to include in the work paper the actual underlying company documents, but is not required to do so.

【13】Audit work papers may include certain information about the organizational structure, including investors and ownership, and information regarding important contracts with customers, suppliers, and lending institutions.

【14】Auditors perform procedures to test equity transactions that may affect the ownership of the company. This may include the auditor’s evaluation of transactions between the company and its related parties. Auditors perform procedures on related party transactions to conclude whether such transactions have been properly identified, accounted for, and disclosed in the financial statements. Information typically found in the audit work papers includes the nature of the transactions, summary of the terms, and the monetary amount of the transactions. The audit work papers may include the contracts associated with the related party transactions, but this is not generally required.

【15】Audit documentation related to internal control over financial reporting includes the auditor’s understanding of the company’s internal controls and how the company’s operating system ensures that financial transactions are processed correctly. Such audit documentation could include, for example, screen shots of system menus showing setup options, rather than specific coding of the system itself. For example, the auditor may describe how access to a relevant financial reporting system is granted or removed (e.g., “access controls”), and whether changes in access were consistent with the company’s established policy. Audit work papers do not typically include the actual software or information that, for example, enables a reviewer of such work papers to gain access to the company’s network or information technology systems.

【16】See SEC Press Release, SEC Adopts Amendments to Finalize Rules Relating to the Holding Foreign Companies Accountable Act, (Dec. 2, 2021), available at https://www.sec.gov/news/press-release/2021-250.

【17】PCAOB, HFCAA Determination Report, p. 8, (Dec. 16, 2021), available at https://pcaob-assets.azureedge.net/pcaob-dev/docs/default-source/international/documents/104-hfcaa-2021-001.pdf?sfvrsn=acc3b380_4.

【18】See PCAOB Release No. 2021-004, Rule Governing Board Determinations Under the Holding Foreign Companies Accountable Act, p. 37, (Sept. 22, 2021), available at https://pcaob-assets.azureedge.net/pcaob-dev/docs/default-source/rulemaking/docket048/2021-004-hfcaa-adopting-release.pdf?sfvrsn=f6dfb7f8_4.

【19】See President’s Working Group on Financial Markets: Report on Protecting United States Investors from Significant Risks from Chinese Companies, p. 19-24, (July 24, 2020), available at https://home.treasury.gov/system/files/136/PWG-Report-on-Protecting-United-States-Investors-from-Significant-Risks-from-Chinese-Companies.pdf