By Mark Schaub and Chen Bing King & Wood Mallesons’ Corporate & Securities group.

schaub_m1Many international companies that have seen sales of product rocket via Chinese ecommerce celebrated the March 17 Announcement by MOFCOM (i.e. a press release regarding the supervision of products imported through cross-border ecommerce (“CBEC Products”) during and after the extended grace period) as a signal that the good times will continue to roll. As stated in our previous article[1] we had concerns that many were reading too much into the March 17 Announcement and in particular the Chinese authorities would continue to have concerns about ensuring consumer safety.

Recently, Xiaoming Yuan, the Deputy Director-General of the Financial Department of the Ministry of Commerce (“MOFCOM”) in an interview with Oriental Outlook provided useful background about the context and implications of the March 17 Announcement.
Continue Reading China Cross-border Ecomm: Intentions Become Clearer

By Mark Schaub, Chen Bing and Martyn Huckerby  King & Wood Mallesons’ Corporate & Securities group

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International health food companies and infant formula food suppliers rejoiced on March 17, 2017, when the China Ministry of Commerce (“MOFCOM”) confirmed that the current supervision model will likely be adjusted for cross border e-commerce retail imports (“CBEC”). The announcement advised that the new model, which will take effect from January 1, 2018, will apply to 15 pilot zones.

The mood was markedly different back in April 2016, when several PRC authorities officially issued new policies regulating cross border e-commerce. The most concerning aspect of the April 2016 measures was that a range of products, including health food, infant formula, cosmetics and medical devices, would need to be registered or filed with the PRC authorities. These  polices caused panic in the market and resulted in a sharp drop (almost one third) of CBEC business revenue. A later notice in May 2016 granted a grace period for the implementation of registration and filing requirements until May 2017, which was extended by MOFCOM in November until the end of 2017.
Continue Reading Respite or False Dawn: MOFCOM Hints at Softening of Tough PRC E-commerce Policies

by Wu Ye King &Wood Mallesons Shenzhen,China

wu_yeA new “filing and negative list” regulatory system for FIEs has now been officially launched in China.

On October 8th, 2016, the Ministry of Commerce (“MOFCOM”) issued the Interim Measures for the Administration of Establishment and Change Filings of Foreign-invested Enterprises (“Interim Measures”), 34 days after the Standing

By Susan Ning, Zhifeng Chai, Weiqing Qiu and Lingbo Wei King & Wood Mallesons’ Commercial & Regulatory Group

Iuntitlednchai_zhifeng recent years, there is an increasing awareness among companies to notify the concentration of business operators before the closing of transaction to ensure the antitrust compliance. By summarizing and analyzing related merger control data of the first quarter in 2016, we hope the below article could provide an overview of the recent merger control enforcement in China.

According to the notice published on official website of Ministry of Commerce of P.R.C. (“MOFCOM”) on April 6, MOFCOM has cleared 81 cases without imposing additional conditions during the first quarter of 2016. The number of cases is increased by 30.6%, when compared with the number of cases cleared during the same period of 2015.
Continue Reading A Review of MOFCOM’s Merger Control Enforcement in the First Quarter of 2016

By Susan Ning, Hazel Yin, Al Wu, Sarah Eder and Lingbo Wei   King & Wood Mallesons’ Antitrust Group

NING, Susan (Xuanfeng)尹冉冉On 4 December 2014, the Provisions of the Ministry of Commerce on Imposing Additional Restrictive Conditions on the Concentration of Business Operators (for Trial Implementation) (hereinafter the “Provisions of Restrictive Conditions”) was officially enacted by the Ministry of Commerce of the People’s Republic of China (MOFCOM), based on its 2013 draft version (hereinafter the “2013 Draft Provisions”). Restrictive conditions in merger reviews are also referred to as “merger remedies”. Pursuant to Articles 28 and 29 of the Anti-monopoly Law (hereinafter “AML”), where a concentration of business operators will or may eliminate or restrict competition, MOFCOM may decide to attach restrictive conditions to its clearance decision in order to reduce the adverse impacts on competition. MOFCOM has given conditional clearance in 24 cases since AML came into effect. Given that the imposition of restrictive conditions on proposed transactions may impact heavily on the parties and the nature of the transaction, even altering the relevant market and development of the relevant industry, the publication of the Provisions of Restrictive Conditions will be of great significance not only to the merger review process, but also to the business decisions of the relevant companies.

The Provisions of Restrictive Conditions came into effect on 5 January 2015. At the same time, MOFCOM’s Interim Regulations on Implementing the Divestiture of Assets or Businesses in Concentrations of Business Operators dated 5 July 2010 (hereinafter “the Regulations on Divestiture”), were repealed. The Provisions of Restrictive Conditions will become an important reference point for the enforcement of restrictive conditions. The Provisions of Restrictive Conditions contain 7 chapters addressing restrictive covenants, including when such covenants will be imposed, the mechanisms for supervising their implementation, the consequences of failing to comply, the procedure for amending them and when the obligations will come to an end .
Continue Reading Developments to the Merger Control Regime in China: MOFCOM’s Provisions on Imposing Additional Restrictive Conditions on Concentrations of Business Operators (for Trial Implementation)

文章:宁宣凤尹冉冉、郑孜青 金杜律师事务所反垄断

2014年2月11日,中华人民共和国商务部(以下简称“商务部”)发布了期待已久的《关于经营者集中简易案件适用标准的暂行规定》(以下简称“规定”),并于2014年2月12日正式开始实施。该规定明确了认定简易案件的具体标准,但并未涉及相应的程序规定。本文将对简易案件的认定标准做具体分析,讨论该规定将如何改变目前中国对经营者集中案件的审查程序,并试图探讨暂未公布简易案件相应程序规定的原因。
Continue Reading 商务部在简易程序制度建设上迈出的重要一步:实施简易案件适用标准

By Susan Ning, Hazel Yin and Zheng Ziqing   King & Wood Mallesons’ Antitrust & Competition Group

On February 11, 2014, China’s Ministry of Commerce (MOFCOM) published the long-awaited Interim Provisions on the Standards for Simple Cases of Concentrations of Operators (the Provisions), which came into effect on February 12, 2014.  The Provisions set forth the substantive criteria for determining which case may be treated as a simple case, yet the procedural rules are still missing.  This article provides an analysis of the standards, discusses how the Provisions will change the current review process and explores the reasons for the lack of procedural rules.
Continue Reading MOFCOM Takes a Major Step towards a Simplified Merger Control Procedure by Promulgating the Standards for Simple Cases

By Susan Ning, Kate Peng and Chai Zhifeng

On August 27, 2013, MOFCOM announced its conditional clearance on MediaTek Inc’s (“MediaTek”) 4 billion USD acquisition of MStar Semiconductor Inc (“MStar“) (the “Transaction“). This is the second “hold-separate” case since this year (the other one is Xstrata/Glencore), and the forth one in China’s merger filing history. 1 MOFCOM appears to be getting more and more confident with the “hold-separate” arrangement as a behavior remedy to address competition concerns.  It is also worth to note that the parties are required to submit detailed operation plan within three months of the decision and the transaction can only be closed after the detailed operation plan is approved by MOFCOM.


Continue Reading Another “Hold-Separate” Decision of MOFCOM—MediaTek’s Acquisition of MStar is Cleared with Conditions

作者:宁宣凤尹冉冉、郑孜青、吉凯伦

《中华人民共和国反垄断法》(以下简称《反垄断法》)自2008年8月1日起实施生效,至今已满5周年。5年来,商务部作为经营者集中审查的主管机关,共审结了逾640起交易,除19起获得附条件批准的交易和1起受到禁止的交易外1,其他交易均获得了无条件批准。5年时间,反垄断的概念在各界的争议和探讨中逐渐深入人心,而商务部的执法能力亦随着实践不断提高,经营者集中附加限制性条件制度也日趋成熟。本文从实务工作者的角度简要回顾和总结经营者集中审查制度及附条件执法的实施情况,以期为企业带来一二启示。
Continue Reading 中国经营者集中审查及附条件执法五年综述

By Susan Ning, Hazel Yin, Ziqing Zheng, Kailun Ji

August 1st, 2008 marks the fifth anniversary of China’s Anti-Monopoly Law (“AML”).  Along with debates and controversies, the AML is gradually taking root and has contributed to shaping the economic landscape and competition status in China.

During the past 5 years, the Ministry of Commerce (“MOFCOM”), the authority in charge of merger control, has cleared more than 640 cases, including 19 cases that were cleared with conditions and 1 case that was denied.1   MOFCOM has been making continuous progress in improving its enforcement capabilities, which are highlighted by the increasingly mature merger remedy regime.  This article presents an overview of the merger control regime, in particular the merger remedies regime in China from the perspective of practitioners.
Continue Reading Review of Merger Control and Merger Remedies Regime in China: From 2008-2013