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By Liu Cheng and Linda Davinson King & Wood’s Foreign Direct Investment (FDI) Group

A significant recent ruling from the U.S. Court of Appeals Federal Circuit temporarily concludes the U.S.-China tire wars in the case of GPX International Tire Corporation and Hebei Starbright Tire Co., Ltd et al v. United States et al.  The U.S. Federal Court held that existing U.S. countervailing duty law cannot be applied to non-market economy (NME) countries including China, affirming the U.S. International Trade Court’s decision but on different grounds. 

Shortly thereafter, China’s Ministry of Commerce (MOFCOM) highlighted the U.S. Federal Court’s decision by issuing a statement to the United States to not impose countervailing duties on Chinese imports because to do so would violate the rules of the World Trade Organization and prevailing U.S. law.Continue Reading US-China Trade War Continues: No Countervailing Duty to be Applied to Goods from China, a Non-Market Economy Country

作者 宁宣凤、吉凯伦、尹冉冉

        2011年12月30日，商务部发布了《未依法申报经营者集中调查处理暂行办法》（“暂行办法”），将于2012年2月1日正式实施。该暂行办法就达到申报标准但未依法申报的经营者集中，规定了调查处理程序。

        根据暂行办法，任何单位和个人均有权向商务部举报涉嫌应报未报的经营者集中，商务部也可能通过其他途径获得相关信息。如果有初步事实和证据表明存在未依法申报嫌疑，商务部就应当立案，并书面通知被调查的经营者。Continue Reading 商务部将加大未依法申报经营者集中查处力度

By Susan Ning, Ji Kailun and Hazel Yin

On 30 December 2011, the Ministry of Commerce ("MOFCOM") promulgated the Interim Measures on Investigation and Punishment of Failure to Duly Notify Concentrations of Undertakings (《未依法申报经营者集中调查处理暂行办法》, "Interim Measures"), effective from February 1, 2012.1   The Interim Measures set down the procedures for MOFCOM to investigate and penalize companies for failure to notify a notifiable transaction in violation of the Anti-Monopoly Law ("AML").

According to the Interim Measures, MOFCOM shall initiate an investigation ("case acceptance") if there is prima facie evidence, either presented by any third party or it obtains through other channels, indicating that a company fails to notify a notifiable transaction. 
 Continue Reading MOFCOM Getting Tough on Failure to Notify a Concentration

By Susan Ning, Liwei Wang and Hazel Yin

On 27 December 2011, the Ministry of Commerce ("MOFCOM") made a press release on its major merger enforcement work in 2011.1  Mr. Shang Ming, Director General of MOFCOM’s Anti-monopoly Bureau and Chairman of the General Office of the State Council’s Anti-monopoly Commission, gave a briefing at the press release and responded to press inquiries.

According to Mr. Shang, from January to mid-December, 2011, MOFCOM received a total of 194 merger control filings, an increase of 43% compared to the same period last year. Among the received filings, 179 filings have been accepted and 160 filings have been reviewed and closed.

Of the 160 closed cases, 151 cases were granted unconditional approval (94%), 4 cases were granted conditional approval (3%), and 5 cases were withdrawn by the applicants after case acceptance (3%). A breakdown of the filings by the industrial classification for national economic activities is as follows:Continue Reading AMB Director Shang Ming Speaks on Merger Enforcement in 2011

By  Susan Ning, Ji Kailun and Yin Ranran

On December 12th, 2011, the Ministry of Commerce ("MOFCOM") conditionally approved the acquisition of the hard disk drive ("HDD") business of the Korean Samsung Electronics ("Samsung") by the US Seagate Technology ("Seagate")1. This is the 4th conditional approval of this year and the 10th conditional approval by MOFCOM since China’s Anti-Monopoly Law ("AML") entered into effect in 2008.

According to MOFCOM’s announcement, this review process lasted for almost 7 months starting from May 19th when the notification was first submitted to MOFCOM. The review process entered into the Extended Phase II and was cleared on the next business day of the expiry date of this phase.2  
 Continue Reading With Conditions, MOFCOM Clears Seagate/Samsung Deal

By Susan Ning, Sun Yiming and Liu Jia

On December 7, the Provisional Measures on Investigating and Penalizing Violation of Notification Obligations for Concentrations between Business Operators (Provisional Measures) were reviewed and discussed at the No. 57th Ministerial Affairs Meeting of the Ministry of Commerce (MOFCOM) and were passed in principle.1  

It was discussed at the meeting that currently companies frequently ignore their merger control notification obligations under the Anti-Monopoly Law which has caused negative social impact.  Under such circumstances, the Provisional Measures are expected to strengthen MOFCOM’s enforcement in relation to investigation and punishment for those companies who fail to honor their notification obligations.Continue Reading MOFCOM Passed Provisional Rule on Failure to Notify on Concentration

By Susan Ning, Ji Kailun and Yin Ranran

Only 10 days after its conditional clearance of the Alpha V/Savio deal1, the Ministry of Commerce (MOFCOM) published, on 10 November 2011, the third conditional merger clearance of this year approving the proposed joint venture between General Electric (China) Ltd. (GE China) and China Shenhua Coal to Liquid and Chemical Co., Ltd. (CSCLC)2. 

This is the first conditional decision relating to a Chinese Stated-owned enterprise (SOE) and the number of MOFCOM’s conditional clearance decisions is lifted to nine in total.  According to MOFCOM’s announcement, the review process lasted for about 7 months starting from April 13 when the notification was first submitted to MOFCOM.

Continue Reading MOFCOM Imposed Conditions on SOEs – GE/Shenhua Deal

On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. According to its announcement, MOFCOM cleared the proposed acquisition by Alpha Private Equity Fund V (Alpha V) of Savio group (an Italia based textile machinery producer, Savio) with four conditions. This is also the second conditional merger clearance this year.
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Continue Reading MOFCOM’s 8th Conditional Clearance – Alpha V/Savio Deal

By Susan Ning and Liu Jia

On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008.  According to its announcement1 , the review process lasted for 3.5 months starting from 14 July 2011 when the notification was submitted to MOFCOM. 

Set forth below is a chart outlining the review process.Continue Reading Alpha V/Savio Deal – A Procedural Overview of MOFCOM’s Decision-making Process

By King & Wood’s Foreign Investment Group

On October 12, 2011, the Ministry of Commerce (MOFCOM) promulgated the Circular on Issues Relating to RMB Cross Border Direct Investment dated (the "Circular"). The Circular provides that outbound investors (including investors of Hong Kong, Macao and Taiwan) can make direct investment with RMB funds they obtained legally outbound (the "Offshore RMB").Continue Reading MOFCOM Releases Circular on Cross-border RMB Direct Investment