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Compliance Alert: Finding and dealing with ‘Red Hats’ in China

The old Chinese saying “money and power always come together” acknowledges the prevalence of using political power to gain business advantage in China. In ancient China, governmental officials opened their own businesses, which earned them the title “Red Hat Businessmen” alluding to the official hat under the Qing Dynasty of China.   

Today, “Red Hat” generally refers to those Chinese businesses that are connected in some way with the government. 

Red Hats may be state-owned enterprises (SOE Red Hat) or purely private businesses (private Red Hat) so closely connected to the government to affect governmental decision-making, such as senior officials’ family members who act as middlemen or co-investors in projects that need government approval or backing. As a consequence of their close governmental connections, employees of Red Hats may be “foreign officials” under the FCPA.

Red Hats are playing a vital role in Chinese economy, and U.S. companies doing business in China are likely to encounter them on a regular basis, which could increase their risks under the FCPA. For example, large SOEs are a primary pillar of the Chinese economy, managing transactions in most important industries like oil and gas, steel, telecom, banking and transportation. In addition, there are another 80,000 small SOEs scattered around the country. 

As for private Red Hats, family members of politicians are themselves successful entrepreneurs, who are known to do particularly well in business due to their political connections. Even if they are not, companies still consider their political connections very valuable.

When encountering Red Hats, companies should conduct due diligence to determine whether a Red Hat qualifies as a “foreign official” and assess their risks under the FCPA:

1. Industry. FCPA risk is highest when SOE Red Hats are involved in industries where SOEs enjoy state-sanctioned monopolies, such as oil and gas, steel, telecom, banking and transportation. In these industries, most SOE Red Hats are wholly owned by the state, and the state has the power to appoint the directors and principals, as well as to approve material decisions such as mergers, divisions and dissolutions, recapitalization, and the issuance of corporate bonds. 

In practice, most of the SOE Red Hats involved in FCPA actions are in these exclusive industries, such as the industries of oil and electricity in United States v. Carson, the telecommunications industry in the SEC’s enforcement action against Lucent Technologies, Inc., and the banking industry in the investigation against JP Morgan.

In industries where SOE Red Hats must compete with private companies, FCPA risk is minimized because most of these SOE Red Hats are partially state-owned and the state nominates candidates for leadership positions rather than directly appointing them. Companies must conduct thorough due diligence to determine whether the state exerts its decision-making power through its representatives.

2. Local Policies. Local policies may shed light on the legality of payments to certain Red Hats. One example is a special Red Hat known as the “Red Hat Intermediary,” which is mostly run by private persons who are connected to the government officials, and to which the government outsources its administrative examination and approval authority. As a result, companies frequently pay Red Hat Intermediaries in exchange for licenses, permits or certifications. 

However, the State Council of the Republic of China (more well-known as the Central People’s Government) issued a Notice in 2015 denouncing Red Hat Intermediaries as a breeding ground of corruption, and announced specific measures designed to combat corruption, including narrowing the administrative examination and approval that could be outsourced, prohibiting government-related persons providing relevant services, and regulating fees and charges. This puts companies on notice of the corruption risks associated with Red Hat Intermediaries.

Special attention should also be paid to recent China capital market reforms, which introduced private and foreign investment to the SOE Red Hats, even in industries with state monopolies. These reforms reduce the likelihood that employees of SOE Red Hats may be deemed “foreign officials” under the FCPA because they decrease the political and policy-driven oversight of the government. 

The State Council still stresses that these reforms do not qualify as “privatization” and not all of the governmental management will be delegated. Therefore, in order to accurately assess the risks under the FCPA in this situation, companies need to wait for China to issue more specific guidelines.

3. Party Member. FCPA risks are heightened if the employee of Red Hat is a member of the Communist Party of China (CPC). The CPC is the only ruling political party in China, and almost all important government posts in China are CPC members.  

Whether working in government or private sector, all CPC members are required to comply with CPC’s party discipline, implement the party policy and work on the party’s goals. Therefore, CPC and the government, to some extent, are fused together. 

CPC members in the private sector are still closely associated with the governmental authority and have access to privileges rarely available to non-members, such as customs and tax preferences. 

Taken together, a CPC member is nearly indistinguishable from the government official.

4. Local Business Culture. Local business culture can also influence how to interpret the dealings between the companies and Red Hats. Chinese culture places an emphasis on the importance of strong personal relationships — even in professional settings. Therefore, in China, it is common for people who want to proceed with a business transaction to provide small favors or gifts to each other. These small favors, such as providing an internship or referring business to an official’s family members, can create great risks under the FCPA because they are likely to be interpreted as intending to corruptly influence the officials to obtain or retain business. 

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While China will continue to attract significant foreign investment, companies must be aware that they are likely to encounter Red Hats who bring risks under FCPA.  

To reduce such risks, companies should determine through due diligence whether employees of particular Red Hats qualify as “foreign officials” for FCPA purposes. They can then begin to safeguard themselves and their employees from enforcement risks.


Yihong Zhang received her Juris Doctor from The George Washington University Law School in 2016 and an LL.B. from the Renmin University of China in 2013. During law school, she interned with the Financial Integrity Unit of the World Bank, focusing on international compliance practices in anti-corruption and anti-money laundering. She can be contacted here.

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  1. Hi Ms Zhang,

    As a due diligence specialist, I duly understand the importance of identify red hats in the EUI. You wrote that "Companies must conduct thorough due diligence to determine whether the state exerts its decision-making power through its representatives "
    I wonder how it can be done. Many if not all of the due diligence investigations are discrete. We shall not notify of the EUI of us investigating them. On the other hand, even if consent letter from the EUI is presented, how can the researcher look into decision-making policies of the EUI?

    Besides how could research accurately determine of a Principal is a party member? Higher rank members such as party secretary would certainly be listed on official websites or mentioned in media. Apart from databases (e.g. Worldwatch) and media, how can to make sure?

    Thank you very much and I really look forward to hearing your views on these.

    Best Regards,

  2. Hi Yihong,

    The article is very interesting. I fully agree with you that currently most of the business in China are influenced or infiltrated by governmental impact.

    Meanwhile, regarding the topic about CPC members, I think it might be overstating the position of CPC members in general. I have no objection that a CPC member is supposed to comply with party's discipline and pursue the goal. However, when we are talking about "Foreign Official" under FCPA or general ABC concept, we usually consider them as holding certain government / quasi-government position, or having capacities to make an influence. But only being a CPC member doesn't necessarily mean the person is already entitled to such capacity of influence or government position.

    After all, there are already more than 88 million CPC members in China as of 2015, and you can imagine most of them are simply normal workers at the basic level, having no political influence at all. Of course, a lot of the "big shots" ruling the country are party members, but I would consider it too aggressive to say “a CPC member is nearly indistinguishable from the government official”.

    There has been a lot of discussions over the boundary of "Foreign Official" regarding China, due to the complicity of its political structure. But it's arguable to simple consider a party member as Foreign Official.

    Thanks for the discussion.


  3. Very interesting article, thank you for posting.

  4. Dear Joey,

    Thank you for your comments!

    As for due diligence investigations for Red Hats, we have to be creative on it. Take CPC member as example, a lot of CPC members are not comfortable with disclosing to foreigners that they are members because they believe that people from western countries have bias against CPC and it's not good for business. It is a good time to have local Chinese people to ask questions, and the questions could be addressed to their staffs.

    As for decision-making policies, we need to take case-by-case approach because the facts differ for every Red Hat. When the state does not appoint directors or principals, but may, according to each Company’s certification of association, nominate candidates for these positions. The state may exert its decision-making power through its representative directors, but how big such power is depends on the how many these representative directors are. While the state is responsible of supervising the financial auditing of these SOE Red Hats, the state will not necessarily determine how to distribute the Red Hats’ incomes. For example, for Red Hats which provide health care and education, the government is more likely to actively fund and supervise them because their works are for public interest. However, the extent of the funding and supervision also varies in cities of different sizes and budget limits.

    I hope it's helpful. Looking forward to hearing your views.

    Best Wishes,
    Yihong Zhang

  5. Dear Kai,

    Thank you so much for you comments. I agree with you that the complicity of China's political structure makes it hard to draw the line, and it is too simple to declare all CPC members to be "foreign officials," if taken out of context. As we know, DOJ and SEC adopt a multiple-factor case-by-case test regarding the foreign official status, and the CPC membership is one of these non-decisive factors. However, DOJ and SEC will not pursue any transactions involving bribery, and for those transactions important enough for they to launch investigations, it is more likely that the CPC member involved is important figure rather than basic worker. Even if he is just a basic figure, his CPC membership could add more weight in this multiple-factor test. In conclusion, CPC membership is not a decisive factor for "foreign official," but is an important risk indicator.

    Best Wishes,
    Yihong Zhang

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