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）。
By Zhang Yi, Alan Du and Hu Xia King & Wood Mallesons’ Securities Group Shanghai Office
In the April, 2012, it was reported by various media sources that the National Development Reform Commission (NDRC) had issued certain policies requiring that an RMB fund (the “FIE GP Fund”) with a foreign invested enterprise (FIE) acting as the general partner (the “FIE GP“) and domestic investors (exclusive of FIEs established in China) acting as limited partners be regarded as a foreign investor. Being defined as a foreign investor means that the portfolio investments of such a FIE GP Fund shall be subject to foreign investment approvals, which are read by the public as referring to approvals from the Ministry of Commerce or its local counterparts(MOFCOM).
Continue Reading NDRC Reply on RMB Fund with FIE GP
根据2012年4月多家媒体的报道，国家发展和改革委员会（“发改委”）出台了相关政策，将人民币基金中，普通合伙人（GP）是外商投资企业（“FIE GP”），有限合伙人（LP）是境内投资者（不含在中国境内设立的外商投资企业）的人民币基金（“FIE GP 基金”）认定为外国投资者，这就意味着FIE GP基金进行项目投资时，应完成外商投资审批程序，从外界看来，应该是指取得商务部或地方商务部门（“商务部门”）的审批。
鉴于国际私募股权投资（PE）机构在设计其境内人民币基金架构时通常是采用FIE GP基金的形式，上述消息引起了极大的关注。如果外资PE机构的人民币基金在进行项目投资时都被认定为是境外基金，将来再以FIE GP基金的形式募集新的人民币基金的可能性将大大降低。通过解读发改委对发布的相关文件和其他监管部门披露的信息，笔者认为，对市场上对于上述消息的影响存在一定的误解。
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 Susan Ning and Hazel Yin
On May 19, 2012, MOFCOM cleared, with conditions, Google’s acquisition of Motorola Mobility ("Motorola"), a USD 12.5 billion deal and the largest ever in Google’s M&A history. The deal was announced in August 15, 2011 and obtained unconditional approval from the United States’ Department of Justice and the European Commission in February 2012. This article outlines the major points of MOFCOM’s conditional clearance decision of the Google/Motorola deal ("Decision").
Continue Reading MOFCOM Cleared Google/Motorola Deal with Conduct Remedies
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.
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 Zeng Xianwu King & Wood’s Foreign Direct Investment (FDI) Group
Since the reform and opening-up policy was introduced in 1978, especially in the past ten (10) years, the People’s Republic of China (the "PRC" or "China") has undergone significant changes. China is a growth engine for the worldwide economy, fueling global expansion via higher output and trading relationships with other nations as well as greater contributions from domestic consumption. Over last nine (9) months of 2011, China has already attracted contractual inbound foreign direct investment of USD177.8 billion. Notwithstanding China’s status as one of the world’s largest economies, and the massive amounts of foreign money invested in China, the basic laws and rules in China governing foreign investment seems mysterious for those who want to invest in China or are accustomed to laws of their countries.
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
