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作者：张毅 金杜律师事务所公司组

2011年8月25日，商务部公布了《商务部实施外国投资者并购境内企业安全审查制度的规定》（下称“规定”），并将于2011年9月1日正式实施。《规定》表示，凡属于上述安全审查范围的企业，外国投资者应向商务部提出并购安全审查申请。对属于并购安全审查范围的并购交易，由商务部在15个工作日内书面告知申请人，并在其后5个工作日内提请联席会议进行审查。《规定》还称，外国投资者不得以任何方式实质规避并购安全审查，包括但不限于代持、信托、多层次再投资、租赁、贷款、协议控制、境外交易等方式。Continue Reading 《商务部实施外国投资者并购境内企业安全审查制度的规定》：外资境内并购管理正式走上法律层面

By Zhang Yi of King & Wood’s Corporate Group

On August 25, 2011, the Ministry of Commerce (MOFCOM) promulgated the Provisions on Implementation of Security Review System Regarding Mergers and Acquisitions of Domestic Enterprises by Foreign Investors ( “Provisions”), which will become effective on September 1, 2011. The Provisions state that foreign investors must file an application for security review with MOFCOM for merger and acquisition (“M&A”) transactions that fall within the scope of security review. If a given M&A transaction is within the scope of security review, MOFCOM will inform foreign investors within 15 working days of the application being filed, and submit the application to the Joint Ministerial Panel for security review within 5 working days. The Provisions also state that foreign investors must not use any means, including but not limited to nominee shareholdings, trusts, multi-tier investments, leasing, loaning, control agreements, and offshore transactions, to evade M&A security review.Continue Reading China Enhances the Legal Administration and Security Review of Inbound M&A Transactions

By Xu Ping, Leading partner of King & Wood’s Corporate Group

On February 3, 2011, the General Office of the PRC State Council issued the Notice Regarding the Establishment of National Security Review Mechanism for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (“国务院办公厅关于建立外国投资者并购境内企业安全审查制度的通知”) (the "Notice"), which will take effect 30 days after its promulgation. The Notice represents another major step that the Chinese government has taken in recent years in the area of regulating mergers and acquisitions (M&A) of domestic companies by foreign investors in China.Continue Reading China Issues Rules on National Security Review for M&A Transactions

Interview with Mark Schaub, a partner with King & Wood’s Corporate Group.

Gasgoo.com: Mergers and Acquisitions (M&A in China) is not simply win-win for owners and companies. It’s also about win-win or win-lose for local governments. For example, small manufacturers provide jobs, taxes and gifts to local officials. If a larger manufacturer acquires a small one, jobs will move along with it. This is the main reason the industry is so spread out. No one wants to let go of jobs in their district. So what’s your opinion on dealing with the local government in an M&A case?Continue Reading Fraud Investigation and Practical Solutions in the Acquisition Process

By: Zhang Xiaomin, Yang Xiaoyu and Yang Wei

Recent government policy adjusting the number of central state-owned enterprises is likely to lead to numerous new opportunities for law firms hoping to participate in large scale restructuring and capital markets transactions. The Stated-Owned Assets Supervision and Administration Commission of the State Council (SASAC) recently stated that by the end of 2010, the number of central state-owned enterprises must be reduced to 80-100, of which 30-50 should be large internationally competitive corporations, and that by 2015, there should be no more than 1000 regional stated-owned enterprises.  Industry insiders expect the recent policy change to lead to widespread potential for large scale securitization and IPO projects.Continue Reading New Government Policy Spurs on SOE Restructurings and Listings

 By Susan Ning, Tao Huang, and Yang Yang

As was the case throughout the world, the global economic downturn beginning in 2008 caused many in the Chinese market to face difficulties in fully performing executory contacts which had been formed prior to the crisis. As such, many parties to such contracts requested modification or even rescission of their contracts under the changed circumstances. As a response to these trends, the Judicial Interpretation on Contract Law II was issued by the Supreme People’s Court of the People’s Republic of China (hereinafter the “SPC”) to further clarify certain legal rules under current Chinese Contract Law . In particular, Article 26, Chapter 4 of the Judicial Interpretation on Contract Law II (hereinafter “Article 26” or the “Fundamental Change in Circumstances” Provision") provides guidance on a party’s right to modify or rescind a valid contract when a Fundamental Change of Circumstances occurs after contract formation. A Fundamental Change of Circumstances in this regard is differentiated from a force majeure event and does not cover changes that may arise from normal commercial risks, and under which the purpose of the contract would be frustrated or performance will result in extreme unfairness.Continue Reading New Provision Could Change Contract Law in China but Judges Remain Conservative

Interview of Roy Zhang of King & Wood’s Banking Department by Zhang Tianhui and He Ran of King & Wood’s Publications Group

Financing is a critical consideration in M&A transactions. For a long period of time, financing large scale strategic M&As of listed companies in China has been a bottleneck. As such, it is important for companies to study successful M&A experiences from abroad and develop additional venues and tools for financing and venues for such transactions.Continue Reading Financing Mergers & Acquisitions in China Today

By Susan Ning, Liu Jia, Huang Jing and Angie Ng, King & Wood’s Competition Group

BHP Billiton (BHP)(1), a global natural resources company, has recently launched a hostile bid (the bid) to purchase PotashCorp (Potash)(2), a leading potash producer based in Canada.
This proposed acquisition is likely to have an impact in the Chinese potash industry.Continue Reading BHP / Potash – and Chinese Antitrust

 By Susan Ning, Shan Lining and Liu Jia, King & Wood’s Competition Practice

On 13 August 2010, the proposed acquisition of Alcon, Inc (Alcon) by Novartis AG (Novartis) was approved by the Ministry of Commerce (MOFCOM), with conditions. MOFCOM’s public announcement in relation to this acquisition is located here. This is the 6th merger that has been approved with conditions, since the enactment of the Anti-Monopoly Law (AML) in 2008.(1)Continue Reading Novartis’ Acquisition of Alcon – Cleared with Conditions

By Mark Schaub, Partner, Corporate, King & Wood Shanghai

Many West European and US companies have thinned out their ranks of middle management in the never-ending pursuit of shareholder value. A China project is likely to be more time intensive and involved (and therefore expensive) than the foreign company initially forecasts. For this reason many foreign investors in China face difficulties in assembling a successful business project team to implement the project. Part I discusses the assembling of an effective in-house team.Continue Reading China M&A: Assembling an Effective Team for a China Transaction Part I