For a few days now, the trade press has been dominated by one specific topic with regard to foreign trade: The Chinese group Cosco wants to take a stake in a container terminal in the Port of Hamburg. And according to current estimates, the investment will indeed take place. Unfortunately, there is a lot of half-knowledge about this in the press. In today’s article, I would like to shed some legal light on the topic and discuss the 3 most important legal facts in this context.
Number 1: First of all, it must be made clear who exactly is the investment target. This is not the Port of Hamburg as such, but the associated container terminal Tollerort, which in turn is part of Hamburger Hafen und Logistik AG. This is a legal entity in the form of a stock corporation. A look at the commercial register (HRB 1902) shows the first articles of association as early as 07.03.1885, a share capital of EUR 75,219,438.00 and documentation of merger transactions. The legal clarification of the investment object is unfortunately not always made correctly in the general media, but is extremely important for an accurate view.
Number 2: Secondly, it should be made clear exactly who the investor is. This is not – as is sometimes read – the Chinese state, but Cosco Shipping Ports Limited. This corporation is a listed port operator based in Hong Kong and registered in Bermuda. Its market capitalisation is more than USD 2 billion. COSCO Shipping Holdings Co., Limited, based in Tianjin, China, has a share of more than 47 percent in Cosco Shipping Ports Limited. This in turn is a subsidiary of China COSCO Shipping Corporation Limited, registered in Shanghai, China, with a market capitalisation of more than 23 billion USD, which operates the largest cargo ship float in the world in terms of deadweight tonnage. The corporate structure and the position of the investor, Cosco Shipping Ports Limited, in this structure is elementary for the correct legal understanding.
Number 3: Thirdly, it is not a takeover of the Port of Hamburg that is at issue, but rather the acquisition of shares in the company. This concerns a possible 35% stake in Hamburger Hafen und Logistik AG held by Cosco Shipping Ports Limited. With regard to the share currently under discussion is an investment of only 24,9%. The latter figure is particularly interesting: according to the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung), investments of 25% or more have to meet special approval requirements (so-called cross-sectoral examination, Section 55a (1) AWV). With an entry share of only 24,9%, there are less approval requirements under the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung).
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