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Editorial : A looming financial war between China and the US

【明報專訊】AFTER conflicts over trade and technology, a financial war between China and the US seems to be on the horizon. A US judge has found three large Chinese banks in "contempt of court" for refusing to comply with subpoenas in an investigation into "North Korean sanction violations". One cannot rule out the possibility that Washington will play the same old trick it used in banning Huawei and take aim at the Chinese banks involved. The worst scenario is the cutting off of the banks' access to the US financial system, meaning they cannot undertake transactions in US dollars anymore. In the past, the US has never invoked the laws concerned in handling similar disputes. The latest case marks Washington's attempt to use legal tools in a more aggressive manner to target Chinese banks and companies, which will inevitably accelerate the "disengagement" between the two economies.

The latest controversy is related to a civil action taken by Washington two years ago, in which the US Justice Department alleged that China's Bank of Communications, China Merchants Bank and Shanghai Pudong Development Bank (SPDB) had laundered, in violation of US sanctions, more than US$100 million for North Korea's Foreign Trade Bank. However, the three banks emphasised they had always complied with UN resolutions on sanctions against North Korea. According to an exclusive report by the Washington Post, a US court ruled last month that the three Chinese banks involved are in contempt of court for "refusing to comply with subpoenas in an investigation into North Korean sanction violations". The ruling specifically pointed out that one of the banks violated an administrative subpoena issued under the USA Patriot Act, pointing the finger at SPDB.

The latest ruling means the US Justice Department and Treasury Department can for the first time invoke the related laws to cut off SPDB from the US financial system, forbidding it from operating any US dollar accounts or doing US dollar transactions. Some experts from the US say if Washington really invokes the related laws of sanctions, it will be tantamount to imposing a "financial death penalty". It will be an attempt to bring down the bank concerned. Even a "fatal attack" though it might not be, it will certainly be sufficient to hurt the bank seriously.

There have been numerous examples of the US unilaterally imposing sanctions by domestic legislation against adversaries like Cuba, Iran or Sudan. Washington has also from time to time "fined" European banks citing their "violation of US sanction orders". However, seldom has it threatened to bring a foreign bank down.

The USA Patriot Act, which was rushed through Congress in the aftermath of the September 11 attacks, has over the years repeatedly sparked controversies over infringing human rights and been criticised as an "unjust law". Now that the US has turned to such kind of law to take down the Chinese banks with the gloves off, it is obviously acting with full malice and not simply out of concern over sanctions against North Korea. Even some US legal experts also think the incident shows that Washington is prepared to "bring its most aggressive legal authorities" against Chinese banks and companies. This kind of "law‑enforcement" action may become the norm in the future.

Ever since the establishment of foreign relations between the two countries in the 1970s, the relations between China and the US have so far been developing in the general direction of strategic cooperation. However, at this moment their relations are already moving away from "engagement" to "disengagement". This trend is evident in the trade war, the tech conflict as well as the looming financial war.

明報社評2019.06.26:金融戰山雨欲來 中美脫鈎成大勢

中美繼貿易戰、科技戰之後,金融戰亦山雨欲來。美國法官裁定3間中國大型銀行「藐視法庭」,拒絕遵從美方有關「違反朝鮮制裁」調查的傳票,不排除華府重施封殺華為故伎,向涉事中資銀行開刀,最壞情况是禁止進入美國金融系統,無法從事美元交易。過去美方從未援引相關法律處理同類糾紛,今次事件標誌華府企圖以更富侵略性的法律工具,對付中資銀行和企業,中美經濟「脫鈎」勢將加快。

今次風波與兩年前華府一宗民事行動有關。當時美國司法部指控中國交通銀行、招商銀行和上海浦東發展銀行違反美國制裁措施,為朝鮮外貿銀行「洗錢」超過1億美元,3間銀行則強調一直有嚴格遵守聯合國制裁決議。根據《華盛頓郵報》獨家披露,上月美國法院裁定,3間涉案中資銀行藐視法庭,「拒絕遵從有關違反朝鮮制裁調查」的傳票,裁決特別指出,其中一間銀行違反根據美國《愛國者法案》發出的行政傳票,矛頭直指上海浦發。

最新裁決意味美國司法部和財政部可以首度援引一項條款,將上海浦發拒諸美國金融系統門外,無法操作美國戶口處理美元交易。美方專家形容,若然華府真的援引相關制裁條款,等同要求判處「金融死刑」,企圖搞垮涉事銀行,就算成不了「致命一擊」,亦肯定足以造成嚴重傷害。

美國透過國內立法單方面制裁古巴、伊朗、蘇丹等敵對國家,例子不勝枚舉。過去華府不時以「違反美國制裁禁令」之名,向歐洲銀行「罰款」,惟鮮有威脅要搞垮一間外國銀行。

《愛國者法案》於九一一恐襲後由美國國會倉卒通過,多年來屢惹侵犯人權爭議,常被批評為「惡法」。現在美方援引這樣的法律向中資銀行動手,惡意滿滿,顯然已不是着眼於制裁朝鮮的問題,就連一些美國法律專家亦認為,今次事件標誌華府已準備採取「最具侵略性的司法權力」,對付中資銀行和企業,這類「執法」行動未來有可能成為常態。

1970年代中美建交,兩國關係一直朝戰略合作大方向發展,然而來到這一刻,中美關係已由「接觸合作」(engagement)走向「疏遠脫鈎」(disengagement),由貿易戰、科技戰到金融戰山雨欲來,均反映這一趨勢。

■Glossary

invoke : to mention or use a law, rule, etc. as a reason for doing sth

adversary : a person that sb is opposed to and competing with in an argument or a battle

malice : a feeling of hatred for sb that causes a desire to harm them

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