merger control

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By Susan Ning and Hazel Yin

August 1, 2012 marks the fourth anniversary of China’s Anti-Monopoly Law (“AML”). 1 With only 57 articles, the AML introduces a series of new regimes governing not only transactions but also day-to-day operations of domestic and foreign companies.  This article presents an overview of how the AML has been implemented so far, with particular focus on the latest development, and where it may go in the near future.   

Merger Control

The Ministry of Commerce (“MOFCOM”) is responsible for reviewing concentration of undertakings that trigger a certain turnover thresholds. 
Continue Reading China’s Anti-Monopoly Law: Retrospect and Prospect on the Fourth Anniversary

作者：宁宣凤   尹冉冉    金杜律师事务所反垄断组

至2012年8月1日，《中华人民共和国反垄断法》（以下简称《反垄断法》）实施已满四年。1虽然仅有57条，但《反垄断法》确立了一系列崭新的制度，其适用对象不仅包括国内公司，也包括境外企业，适用范围不仅涵盖公司的日常运营，也包括公司间的交易行为。本文简要回顾《反垄断法》四年的实施情况，并对其实施趋势予以展望。

一、合并控制

经营者集中在达到一定营业额标准后，需提交商务部进行经营者集中的反垄断审查。自2008年8月1 日以来，商务部累计审查逾450起交易，其中95%以上的交易获得无条件批准。截至2012年8月1日，商务部已附条件批准14起交易，禁止1起（可口可乐收购汇源）。Continue Reading 中国反垄断法实施四周年回顾与展望

作者:贺墨亭 黄紫玲 金杜律师事务所公司组

2012年6月22日，香港首部跨部门的实体竞争法在香港特别行政区政府宪报中公布，随之设立了新的监管机构，该机构的设立将会推动亚洲商业经营行为的变革，而该机构本身也拥有广泛的强制执行权力，其中包括有权在相关修订生效后开展黎明突袭，并对违反竞争行为处以严重处罚。

《竞争条例》将禁止卡特尔行为、滥用市场权势和其他形式的违反竞争行为，但一些豁免情况除外（包括考虑经济效率所规定的豁除、集体豁免和最低营业额）。合并审查将继续限制适用于电信部门。

香港竞争事务委员会（竞委会）将享有一系列的调查和强制执行权力，包括有权发出违章通知书、接受承诺、对举报人给予豁免、及启动诉讼处罚程序、和发出禁止担任高管职务的命令。

在本篇法律快讯中，我们将介绍《竞争条例》主要条款的潜在影响，提示企业应在该新法律规制下采取哪些准备措施，并简要列举新成立的竞委会将拥有哪些调查和强制执行权力。
Continue Reading 香港的新竞争法:反托拉斯革命的大幕即将拉开

By Susan Ning and Huang Jing

On June 6, 2012, the Ministry of Commerce (“MOFCOM“) promulgates the new merger filing form (the “New Form“).  Filings submitted after July 7, 2012 should use this New Form.  The New Form is more than just a formal change.  MOFCOM has condensed its three and a half years of experience since the first filing form of January 2009 into the new form.  It contains requests for additional information and guidelines on some substantive issues of merger filling.

 The definition of “operator to the concentration”

Before the promulgation of the New Form, the definition of an “operator to the concentration” is one of the major unsolved issues related to merger control review in China. 
Continue Reading MOFCOM New Merger Filing Form-Clarification on Major Filing Issues

By Susan Ning and Hazel Yin

On June 15, 2012, the Ministry of Commerce (“MOFCOM”) approved the acquisition of Goodrich Corporation (“Goodrich”) by United Technologies Corporation (“UTC”) subject to the divestment of the electronic systems business of Goodrich.  Both companies are headquartered in the United States and active in the production and sale of aviation equipment.  This marks the fourth conditional clearance issued by MOFCOM in the first half of 2012 and the only case where the core remedies are structural.

 Review Process.  MOFCOM received the notification on December 12, 2011 and officially accepted it on February 6, 2012.  A Phase 2 investigation was opened on March 2 and extended on May 31, which was set to expire on July 30. 
Continue Reading MOFCOM Approves UTC’s Acquisition of Goodrich with Divestiture Requirement

By Martyn Huckerby Jill Wong King & Wood Mallesons’ Foreign Direct Investment Group

On June 22, 2012, Hong Kong’s first cross-sector substantive competition law regime was published in the official gazette, bringing with it a new regulator ready to change business practices in the Asian region, and armed with extensive enforcement powers, including the ability to conduct dawn raids and levy significant fines for anti-competitive conduct once the changes come into force.

The Competition Ordinance will prohibit cartel conduct, abuses of market power and other forms of anti-competitive conduct, subject to the availability of a number of exemptions, including exemptions based on efficiencies, Block Exemptions and minimum turnover. Merger control will continue to be limited to the telecommunications sector.
Continue Reading Hong Kong’s new competition law: get ready for the antitrust revolution

By Susan Ning, Zheng Ziqing and Wu Han

On March 12, two Chinese Internet video giants Youku and Tudou announced that the two companies have signed a final agreement on March 11 to combine their services in a 100% stock-for-stock transaction to create a new service provider, Youku Tudou Inc, allowing Tudou to exit the stock market.

After the combination, Youku’s shareholders and holders of its American Depository Receipts (ADRs) will have 71.5% of equity of the new company, with Tudou’s shareholders and its ADR holders entitled to 28.5% of the combined equity. Youku’s ADRs, under the symbol of "YOKU", will continue to be listed on the New York Stock Exchange.Continue Reading Launch of Youku Tudou Inc.

By Susan Ning, Ji Kailun and Hazel Yin

On March 2nd, 2012, the acquisition by Western Digital ("WD") of Hitachi Global Storage Technologies ("Hitachi") finally received conditional nod from the Ministry of Commerce ("MOFCOM"), three month after MOFCOM conditionally cleared the Seagate/Samsung deal1 .

Review Timeline

According to MOFCOM’s announcement 2, this review process is particularly lengthy: the first submission was made on April 2nd, 2011, while the clearance was obtained 11months later.  During this period, this filing was withdrawn by WD shortly before the expiry of the Extended Phase II due to "significant changes of facts".  On November 7th, 2011, WD re-submitted the notification and the filing was cleared at the end of the second round of Phase II.Continue Reading Western Digital/Hitachi Received Conditional Nod from MOFCOM

By Susan Ning, Liu Jia and Hazel Yin

China Securities Regulation Commission ("CSRC") is the authority in charge of supervising Chinese listed companies.  In August 2010 and November 2011, CSRC published on its website two FAQs addressing application of the merger control regime under the Anti-Monopoly Law ("AML") to listed companies.
 Continue Reading CSRC’s Guidance on Merger Control of Listed Chinese Companies

By Susan Ning, Liu Jia and Hazel Yin

On February 9, 2012, the Ministry of Commerce ("MOFCOM") published its first conditional clearance decision in 2012, approving the proposed joint venture ("JV") established by Henkel Hong Kong Holdings Co., Ltd. ("Henkel HK") and Tiande Chemical Industry Co., Ltd. ("Tiande") ("Transaction").  This is the second conditional clearance decision in relation to a joint venture and reaffirms MOFCOM’s approach that formation of a joint venture does constitute a notifiable transaction under the Anti-monopoly Law ("AML"). 1

Review Process.  MOFCOM received the notification on 8 August 2011 and  officially accepted it on 26 September 2011.  The case entered into Phase II on 25 October 2011 and the parties submitted the proposed remedies on 13 January 2012, shortly before MOFCOM decided to extend the Phase II period for another 60 days on 19 January 2012. On 9 February 2012, MOFCOM made the final decision to approve the Transaction with conditions.Continue Reading MOFCOM Issued the Second Conditional Clearance on Joint Venture