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作者：金杜律师事务所外商投资部

2011 年10 月12 日，商务部正式颁布了《商务部关于跨境人民币直接投资有关问题通知》（ “《通知》”）。《通知》规定，境外投资者（含港澳台投资者）可以合法获得的境外人民币依法开展直接投资活动。Continue Reading 商务部发布《商务部关于跨境人民币直接投资有关问题的通知》

By Susan Ning and Huang Jing

On 21 September 2011, Mr. Shang Ming, Director General of MOFCOM’s Anti-Monopoly Bureau revealed the yearly merger control statistics at the BRICS International Competition Conference 2011 held in Beijing.

According to Mr. Shang, the merger control statistics for 2008, 2009 and 2010 are as follows: 

     Case numbers
 		  
  Year Cleared without conditions  Cleared with conditions 

Rejected
 
2008                           16                          1         0
2009                           75                         4        1
2010                           116                         1        0

 Continue Reading MOFCOM Revealed Yearly Merger Control Statistics

By Susan Ning and Huang Jing

On 21 September 2011, Mr. Shang Ming, Director General of MOFCOM’s Anti-Monopoly Bureau revealed the most recent legislative plan of MOFCOM’ at the BRICS International Competition Conference 2011 held in Beijing.

According to Mr. Shang, MOFCOM will promulgate 3 new rules on merger control within this or next year. The 3 new rules are: Rules on Imposing Restrictive Conditions on Concentration of Operators (the "Rules on Remedies"), Rules on the Investigation and Handling of Violation of Notification Obligations for Concentration of Operators (the "Rules on Violation of Notification Obligations"), and Rules on the Investigation and Handling of the Concentration of Operators below the Notification Thresholds with Monopoly Suspicion (the "Rules on Mergers Below Thresholds").Continue Reading MOFCOM to Promulgate Three New Rules on Merger Control

Susan Ning and Yin Ranran

On September 2, 2011, China’s Ministry of Commerce ("MOFCOM") released on its website the Provisional Rules on Assessment of Competitive Effects of Concentration of Business Operators (MOFCOM 2011 Announcement No. 55, the "Rules").  With 14 articles, the Rules elaborated on the factors to be considered by MOFCOM in assessing the competitive effects of a business concentration, which have been listed in Article 27 of the Anti-monopoly Law ("AML")1 .  The Rules are implemented as of today (September 5, 2011).

The Rules set out the basic methodology for its competitive analysis and the basic elements for application of each factor in a merger review process.  The Rules appear to identify market share/market control power and market concentration levels as the most important factors to be considered by MOFCOM in assessment of competitive effects of a concentration.Continue Reading MOFCOM’s New Antitrust Rules Shed Light on Its Competitive Assessment Process

By Susan Ning, Huang Jing and Yin Ranran

On 25 August 2011, the Ministry of Commerce (MOFCOM) released the MOFCOM Rules for Implementation of Relevant Issues regarding National Security Review Mechanism for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (NSR Rules).  From 1 September 2011, the Rules replaces the MOFCOM Interim Rules for Implementation of Relevant Issues regarding National Security Review Mechanism for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (NSR Interim Rules) issued on 4 March 2011 (see our article entitled "MOFCOM issues national security review interim rules").

Compared with the Interim Rules, the key change we see in the NSR Rules is that MOFCOM clearly states that the authority will assess the applicability of the national security review (NSR) process from the substance and actual impact of a transaction; and that foreign investors shall not evade the NSR regime via alternative transaction structures, including but not limited to warehousing arrangements, trusts, multi-tier investments, leases, loans, contractual control, or offshore transactions, etc.Continue Reading Updated National Security Review Rules: A Justifiable Cause of Anxiety?

Susan Ning and Yin Ranran

Recently, the Ministry of Commerce (MOFCOM) announced that its Anti-monopoly Bureau is to put up a signboard for the "Office of State Council’s Anti-Monopoly Commission (AMC)".  According to Mr. Yao Jian, a spokesman for MOFCOM, the State Council has approved the formal establishment of the AMC Office (even though the AMC Office has been operational within MOFCOM since the enactment of the Anti-Monopoly Law (AML) in 2008).  

As the third anniversary of the AML draws near, Mr. Yao expects that this move will further enhance effective enforcement of the AML and the coordination among the various ministries under the AMC.Continue Reading Formal Establishment of Anti-Monopoly Commission Office within MOFCOM Approved

By Susan Ning, Shan Lining and Angie Ng


Pursuant to the Anti-Monopoly Law, transactions which are construed as "concentrations" (i.e. mergers, acquisitions and joint ventures) and which meet with specified turnover thresholds 1; must be notified to, and cleared (from an antitrust law perspective) by MOFCOM, before business operators can go ahead with these transactions (notifiable concentrations). Continue Reading MOFCOM publishes draft rules on investigation procedures re failure to notify on concentrations

By Susan Ning, Zheng Ziqing and Angie Ng

On 3 June 2011, the Ministry of Commerce (MOFCOM) published, for public comments, draft rules which explain how MOFCOM will evaluate concentrations pursuant to the merger control regime.  These rules are entitled "Provisional Rules on the Assessment of the Effects of Concentrations on Competition" (Draft Rules).  The public has been invited to submit comments on these Draft Rules by 13 June 2011.

In fact, Article 27 of the Anti-Monopoly Law (AML) outlines a list of factors that MOFCOM would take into account, when assessing concentrations.  These are: (a) the market shares of the business operators involved in the concentration and their control over the market; (b) the degree of market concentration; (c) the impact of the concentration of business operators on market entry and technological advancement; (d) the impact of the concentration on consumers and other relevant business operators; (e) the impact of the concentration of business operators on the development of the national economy; and (f) any other factors deemed by MOFCOM to be relevant for consideration.  The Draft Rules expand on these factors.  There are altogether 14 provisions in the Draft Rules.  The following table provides an illustration of how the Draft Rules "expand" on the factors set out in Article 27 of the AML.
 Continue Reading Draft Merger Control Rules Published For Comments

By Susan Ning, Huang Jing and Shan Lining

On March 4 2011, just one day before the implementation of the national security review mechanism1, the Ministry of Commerce (MOFCOM) released the MOFCOM Interim Rules for Implementation (Interim Rules). These Interim Rules came into effect on 5 March and are set to expire on 31 August 2011.

The Interim Rules provide more details in relation to how the national security review process is initiated, documents to be submitted and more details the initiation of a national security review, the required documents, and the review decisions.
 Continue Reading MOFCOM issues national security review interim rules