Review of Merger Control and Merger Remedies Regime in China: From 2008-2013

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.

1. Overview of Merger Control Regime and Cases Cleared with Conditions

As of June 30, 2013, MOFCOM received 754 cases in total, officially accepted 690 cases and cleared 643 of them, including 18 conditionally approved cases and 1 forbidden case (Coca Cola’s acquisition of Huiyuan).  The following chart indicates the yearly statistics of all cases cleared (with or without conditions) and cases conditionally approved by MOFCOM.² 

 
1.1 Industries Involved in Cases with Conditions and Types of Concentration

According to the Industrial Classification for National Economic Activities (GB/T 4754-2011) of the National Bureau of Statistics, 5 industry categories are involved in the 18 cases with conditions, including “manufacturing”, “production and supply of electricity, heating, gas and water”, “information transmission, software and information service industry”, “wholesale and retail”, and “mining industry”.  In particular, a total of 12 cases relate to the manufacturing industry. (See Table 1 below)

Horizontal mergers usually are considered more likely to cause competition concerns.  Similar as law enforcement authorities in other jurisdictions, MOFCOM pays closest attention to horizontal mergers.  Among the 18 conditionally approved cases, 11 cases relate to horizontal mergers, and 1 case relates to both horizontal and vertical relationship.  Only 4 cases relate to vertical relationship and the other 2 cases concern conglomerate relationship. (See Table 1 below)

Table 1: Industries Involved in Cases with Conditions and Types of Concentration

Note: The rejected acquisition of Huiyuan by Coca Cola (2009) is a conglomerate concentration related to “alcohol, drinks and refined tea production industry”.

1.2 Review Timeline for Conditionally Approved Cases

All conditionally approved cases, but for the earliest two, were closed at Phase II or extended Phase II, showing that MOFCOM has become increasingly cautious when imposing conditions. (See Table 2 below)

Table 2: Timeline for Cases Conditionally Approved by MOFCOM

** Statistics updated as of Q2 of 2013.

In November 2008, when the first conditional case (AB/Inbev) was issued, information disclosed in the final decision was very limited.   Five years later in the Glencore/Xstrata (2013) case, not only did MOFCOM provide detailed competition analysis of market share, market power, market entry and influence upon consumers, but also disclose, for the first time, the full text of the parties’ final commitment proposals.  This shows that MOFCOM has made great progress in merger remedy practice, and has been making efforts to increase transparency of its law enforcement.

2. Types of Remedies

Although the AML is largely influenced by EU experiences, MOFCOM has gradually developed its own methodology and distinguished itself from its foreign counterparts.  For example, MOFCOM was the only antitrust authority imposing conditions upon such global transactions as General Motor/Delphi (2009), Seagate/Samsung (2011), Google/Motorola (2012) and Marubeni/Gavilon (2013).  In other transactions, such as WD/Hitachi (2012) and Glencore/Xstrata (2013), MOFCOM imposed conditions different from other jurisdictions. We hereby analyze the structural and behavioral conditions as follows:

2.1 Structural Remedies

MOFCOM has been relatively cautious in the application of structural conditions, which usually mandate the divestiture of the parties’ assets or businesses.  Such reluctance may be prompted by MOFCOM’s intention to preserve the original structure of a transaction to the extent possible.  Of the 18 conditionally cleared cases, 7 cases involve structural conditions and all of them are horizontal mergers.

Structural conditions in these cases include not only typical ones, i.e. divesture of existing independent business unit, but also relatively less common ones, such as divesture of assets, production capability, shares in affiliates and shareholders’ interests that do not constitute independent business unit. (See Table 3 below)

Table 3: Cases Involving Structural Remedies

2.2 Behavioral Remedies

In contrast to the experiences in some other major jurisdictions, MOFCOM employs a more receptive approach to conduct remedies.  The majority of the 18 conditionally cases involve behavioral conditions.  Some of the behavioral conditions are also frequently used by foreign authorities, such as the opening up commitment, non-discrimination terms, termination of exclusive contracts, and transitional assistance obligations.  Some, on the other hand, are less common, such as the commitment of supply and service standard, prohibition of market expansion, hold-separate and prohibition of certain market behaviors. (See Table 4 below)

Table 4: Cases Involving Conduct Remedies

In Seagate/Samsung (2011), WD/Hitachi (2012) and Marubeni/Gavilon (2013), MOFCOM imposed “hold separate” conditions requiring the merged parties to maintain operations independently.  While the “hold separate” condition may be categorized as behavioral, MOFCOM has publicly expressed that such condition was intended to achieve similar effects as structural conditions. 

Although some of the behavioral conditions imposed by MOFCOM are creative, proper supervision of these conditions has become a challenge.  In Novartis/Alcon (2010), Uralkali/Silvinit (2011), Seagate/Samsung (2011), Henkel/Tiande (2012), WD/Hitachi (2012), Google/Motorola (2012), Glencore/Xstrata (2013) and Marubeni/Gavilon (2013), MOFCOM requested the parties to engage an independent supervision trustee.  In the Walmart (2012) and ARM (2012) cases, the decisions provide that MOFCOM is entitled to supervise either by itself or through the supervision trustee.  In AB/Inbev (2008), General Motor/Delphi (2009) and GE/Shenhua (2011), however, the decisions did not specifically mention the requirement for a supervision trustee. 

Even in cases with supervision trustees, such difficulty still exists. For instance, in the WD/Hitachi (2012) case, MOFCOM requested the parties to maintain Viviti (Hitachi’s subsidiary operating the relevant business) as an independent competitor and to adopt safeguard measures to avoid exchange of competitive information.  This condition places enormous burdens on the parties, in particular in light of integrations that are usually required of merging parties under applicable corporate and securities laws.  Therefore, a balance has to be made to ensure that such supervision does not strip the conditions of their substance nor introduce unintended burdens on the obligors’ businesses.

3. Market Survey Instruments Adopted by MOFCOM

MOFCOM has adopted numerous market survey instruments in the merger review process, including written consultation, meetings, hearings, site investigation, entrusted investigation, face-to-face interview with relevant parties, telephone interview and questionnaire.  In such market surveys, government authorities, relevant industry associations, competitors, upstream and downstream entities as well industry experts will be consulted on important issues in the cases.

The weight MOFCOM gives to these opinions differs as shown in Chart 2 below.

Chart 2:

 
Generally, opinions from government authorities are most influential on MOFCOM’s decision.  MOFCOM usually seeks the opinion from the National Development and Reform Commission (“NDRC”), sometimes also from competent authorities in charge of different industries, for instance, from the Ministry of Industry and Information Technology (“MIIT”) for filings related to traditional and high-tech industries, and from the Ministry of Agriculture (“MOA”) for filings involving agricultural products.  In addition, for filings involving foreign investment, MOFCOM usually consults with the relevant approval authorities for foreign investment, such as the Department of Foreign Investment Administration of MOFCOM and/or local foreign investment approval authorities.

The review timeline and the MOFCOM decision may be affected by the opinions of other government authorities.  For example, in the Marubeni/Gavilon (2013) case, the parties are required to “hold Marubeni Soybean Sub and Gavilon Soybean Sub separate from each other”.  One could imagine that MOFCOM should have consulted the domestic soybean industry association and the MOA. Considering both MOFCOM and MOA are at the same administrative ranking, MOFCOM would be prone to give substance to MOA’s opinions.

4. Conclusion and Forecast

Looking back upon the past 5 years, MOFCOM’s achievements are widely recognized by domestic and international communities.  Going forward, we expect that:

— behavioral remedies will continue to be put equal weight as structural remedies;

— innovation on the types of remedies will continue to be encouraged;

— MOFCOM’s review process may be accelerated by introducing the “fast track” mechanism; and

— Transparency of MOFCOM’s review process will be further enhanced.

With China becoming one of the “major” antitrust jurisdictions alongside the U.S. and Europe, both domestic and international companies should consider the implications of a MOFOM review and identify in advance the competition issues that their transaction may raise, before embarking on major transactions in China.

¹On August 13, 2013, MOFCOM issued conditional clearance of Baxter’s acquisition of Gambro. Since most data used in this article dates as of Q2 of 2013, this case was not included in the below discussions.

²The number of conditionally approved cases in year 2013 is updated as of Q2 of this year, while the total case number is an estimate based on cases cleared as of Q2 of 2013.