Sunday, September 7, 2014

Alibaba and the Rule of "Law"

With the numerous articles about the upcoming Alibaba Group IPO, I'd like to focus on the rule of law and its history with the leadership at Alibaba (i.e. the Chief Executive Officer, Jack Ma). Alibaba may indeed be one of the largest and most profitable businesses in China, but does that translate to profits for investors?

For reference, Alibaba is one of the largest group of e-commerce businesses in China with over 7.5$ billion in sales in last year. Its multiple lines of business span across web portals for business to business transaction, payments services, Amazon-like search engines.  However, its focus remains in China, so why is it listing stock in the United States/New York Stock Exchange?

In short, it is because was denied listing in Hong Kong:
Alibaba considered listing its shares in Hong Kong. The company asked the Hong Kong Stock Exchange to allow a listing despite rules that permit only one shareholder vote per share; Alibaba has an unusual partnership structure that gives more sway to top executives, including Mr. Ma. After Hong Kong regulators refused to make an exception, Alibaba pursued a listing on the New York Stock Exchange, which allows more diverse ownership structures.
The "more diverse ownership" euphemism is essentially an admission that Alibaba did not want to give control with ownership and and went with the lowest denominator/least regulation. It will be using a dual-class like structure where founders' shares have more control than regular shares. Now, Google, Facebook and other internet companies have similar structures so that itself is not necessarily a damning factor. I personally believe is a huge incentive misalignment (it allows founders to risk other's capital without commensurate compensation). At worst, it allows founders to misappropriate assets without recourse (see below).

This is the least problematic of Alibaba's history with investors. When Jack Ma/Alibaba sold a large stake of itself to Yahoo, he had seller's remorse post-close and thought he undersold. He tried to buy shares back but since Yahoo refused he resorted to a transfer:
Mr. Ma transferred ownership of Alibaba’s fast-growing online payment service, Alipay, to an entity that he controlled. He didn’t get the permission of Alibaba’s board. He just went ahead and did it.
Basically, Jack did not like the terms of his sale and therefore ignored it. Yahoo/Alibaba did not get compensation for Jack's self-dealing and could do nothing about it. This is how Jack and the leadership at Alibaba treats investors that it does not get along with.

Furthermore, since Alibaba will be partially using variable-interest-entities as mandated by Chinese law, USA investors do not even own some parts of Alibaba. They have a profit participation interest via a Cayman Islands entity. Given that Jack and Alibaba's leadership do not even reside or do business in the USA, what potential recourse do investors/customers here have?

Suppose a year after the IPO Alibaba's shares have doubled, but the overall group's business is slowing down. What prevents the leadership from selling its stock, transferring the jewels of the business to themselves, and starting over?


No comments:

Post a Comment