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Brief discussion on Alibaba’s legal risk My favorite company is Alibaba. Alibaba started his business as a platform for facilitating E-commerce between buyers and sellers in China in 1999. There are 17000 employees in more than 50 cities and 50 million users in 240 countries now. Before started the process for an initial public offering in the U.S, Alibaba.com has hold 70% of China’s online E-commerce market. As the biggest IPO in history, Alibaba became one of the most valuable tech companies in the world. By listing in the U.S., Alibaba come into the international stage. It recognized by overseas investors and investment corporates, which help enlarge its business scale and attract more partners on both domestic market and its overseas market. I am interested in Alibaba when I heard that there was a contract between Yahoo and Alibaba in 2006. It clarified that if Alibaba does not start Initial Public Offering before 2015 it cannot get back a half of shares of the company owned by Yahoo and Yahoo could deal with all Alibaba’s shares as Yahoo’s will. Proofs by facts, Alibaba made his IPO before 2015. I have to admire the man behind Alibaba—Mr. Jack Ma. As the spiritual leader of the company, Mr. Ma become a hero in the heart of many people. But if I could be a CEO of Alibaba, I have to say that Alibaba is facing a slew of new business challenges and potential legal risk.
Alibaba’s legal and ethical analysis:

1) Doubt on legal structure of Alibaba. Alibaba is using a so-called variable interest entity structure. What is the VIE structure? The structure was created in the US as far back as the year 2000 when SINA, which is a Chinese online media company, had its initial public offering on the NASDAQ. Certain industries such as internet and communication industries in China are heavily prohibited foreign ownerships by the Chinese government. So VIE structure become very popular when those Chinese companies seek listing on overseas exchanges. Effectively the VIE structure means that the entities listed abroad do not have direct financial relations and do not actually have a claim on the assets of the company in China (Pearson, 2012). The entities listed abroad obtain economic benefits from Chinese mainland companies by agreements and contracts. Alibaba is using a straightforward VIE structure. It means foreign investors have only little control over Alibaba’s Chinese entity. They purchased shares in a Cayman Islands entity, not shares in Alibaba China which is owned by the founder. It is highly risky if shareholders in the United States want to enforce their rights. They will have to follow the contracts between a Cayman Islands entity and the based in mainland China. Any dispute with the founder could be fatal for the company. For example, a dispute happened between Yahoo and Alibaba when the founder transfer the online payment unit to Alibaba China without the permission of its biggest shareholder—Yahoo. Although the issue was resolved finally, it warned that the VIE structure was vulnerable to abuse by Chinese investors and could lead to losses by shareholders in the USA. And in addition, Chinese government do not have an explicit regulation for VIE structure yet. This uncertainty of Chinese legal arrangements will lead to potential litigation or business pitfalls for Alibaba.

The VIE contractual arrangement
Wholly Foreign owned Enterprise

Domestic Enterprise
A series of contract

Investors
Public shareholders
Cayman Islands Company
(Financing, listing)
Founding shareholder
Offshore company
The VIE contractual arrangement
Wholly Foreign owned Enterprise

Domestic Enterprise
A series of contract

Investors
Public shareholders
Cayman Islands Company
(Financing, listing)
Founding shareholder
Offshore company | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Offshore | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Onshore | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

How to minimize the risk? My opinion are as followings: 1) A more diverse shareholding of the VIE. This practice could reduce the opportunity for single-handedly control on the VIE. 2) Maximize alignment of interests between persons controlling the VIE and those of the offshore holding Company. A sufficient management is important for a company’s business development. If there are common interest for a group, it is easier to ensure the VIE structure more stable and reduce the negative effect. 3) Ensure the VIE structure contractual arrangements are in order and enforceable. All documents should be reviewed by director and legal representative of the VIE. A Looking at Chinese VIE'sshould be established to perform contract, supervise contract execution, and deal with change orders.

2) The ongoing copyright infringement issues.
Alibaba's main business is selling. Its Tmall online stores provide a shop for brands like Nike and Unilever, while Taobao is focused on consumer-to-consumer trade. Its closest U.S. peers might be Amazon and eBay. But unlike Amazon, Alibaba doesn't hold inventory or manage warehouses, and unlike eBay, it gets most of its revenue from advertising, not charging users. Meanwhile, its range of services gets ever wide. It is very difficult to guarantee the product quality and ensure all selling goods are certified goods. Although there is a complaint handling procedure for the customers in Taobao and Tmall, I don’t think this procedure is working effective since Taobao depends only ex-post mechanism to deal with complaints not prevent the counterfeit goods in advance. The processing efficiency of the handling procedure is very low. In addition, Alibaba’s struggle to fight copyright infringement is part of a larger problem in its social environment. Most of Alibaba’s customers are in China. Unfortunately flaws in the system have created a breeding ground for extensive availability of counterfeit merchandise in China. To evade those risks, Alibaba could build up own warehouses and the scientific measurement system. All selling products though Taobao and Tmall have to pass rigorous quality inspection. Alibaba could also teamed with brand owners and law enforcement officials to target peddlers offering counterfeit items for sale. As the biggest online retail empire, Alibaba could seek and urge Chinese government’s help to keep control over the sale of fakes and pirated goods by enacting stricter regulations on copyright infringement.
Conclusions:
All in all, from the brief analysis above, we can find that Alibaba is faced up with chances and challenges at the same time. Becoming one of the biggest IPO, Alibaba come into a larger international stage. It means his management system can be improved with new knowledge, experience and become more standardized and globalized. And beside these benefits, we have to keep an eye on the risk. Like Professor Nicholas C. Howson of the University of Michigan law school warned: “Alibaba could be the single biggest time bomb in the U.S. capital markets (MILLMAN, 2014)”. As a CEO of Alibaba, I would like do as followings to avoid those legal risks: * Diverse the shareholding of Alibaba * Build up a legal department to perform contract, supervise contract execution, and deal with change orders * Team with brand owners and law enforcement officials to target peddlers offering counterfeit items for sale * Cooperate with other big enterprises in China to urge Chinese’s government to enact stricter regulations on copyright infringement

Bibliography
MILLMAN, G. J. (2014). Alibaba’s IPO Puts VIE Structure in the Spotlight.
Pearson, R. (2012). Looking at Chinese VIE's.

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