Abstract:
In recent years, stock market capitalization-linked valuation adjustment mechanisms (VAMs) have emerged in capital markets, whose core feature lies in anchoring contractual gains and losses to the stock market capitalization indicators of listed companies in the secondary market, thereby deviating from the risk-adjustment logic of traditional VAMs, which is based on corporate operating performance and value growth. Since stock market capitalization possesses both a public nature and objective uncertainty, such clauses essentially cause private interest adjustments to generate risk externalities that extend beyond the scope of the contracting parties, distorting the price formation mechanism in capital markets that is premised on adequate information and incentive compatibility. The difficulty in regulating stock market capitalization-linked VAMs lies in the structural tension between the traditional private-law logic of party autonomy and the risk-prevention logic of financial regulation: relying solely on contract validity assessment fails to address the latent and mass-involving nature of financial market risks; meanwhile, regulatory rules exhibit a certain degree of scenario-specificity and thus cannot effectively cover stock market capitalization-linked VAM behaviors that exist in concealed forms; furthermore, the coordination between the two remains insufficient. The United States defines financial instruments on a functionalist basis, continuously bringing contractual innovations under regulation; its enforcement structure, characterized by the deep embedding and linkage of regulation and adjudication, has resulted in the rarity of VAM financing instruments guaranteeing against stock downside risk in its capital markets, which offers valuable lessons. In light of China's national and market conditions, China should construct a substantive regulatory framework based on the financial functions and risk attributes of contracts, achieving integrated governance through the coordination of regulatory enforcement, judicial adjudication, and market mechanisms. Specifically, on the regulatory side, a cross-scenario continuous supervision framework should be constructed based on the financial functions and risk attributes of such agreements, strengthening the mechanisms for agreement identification, look-through disclosure, and risk early-warning. On the judicial side, interest structures involving a high degree of moral hazard should be identified by considering factors such as the degree of linkage to stock market capitalization, the extent of interest association among the parties, and the influence on stock prices, and the validity of such agreements should be determined by applying private-law tools such as the public order and good morals clause. Procedurally, a regulatory-judicial coordination mechanism should be established that connects clue transfer, professional consultation, and investor relief. At the same time, institutional supply should guide market participants toward adopting risk-allocation instruments with genuine commercial functions, so as to promote long-term value creation in capital markets.
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