Monday, May 4, 2009
Posted by D. Daniel Sokol
Jun Wei (Hogan & Hartson) has provided an analysis of Recent Developments in Concentration Control Rules under China’s Anti-Monopoly Law. Given some important merger decisions in the past few months, this piece is particularly timely.
ABSTRACT: China has been fleshing out its concentration control regime since the Anti-Monopoly Law (“AML”) took effect on August 1, 2008. Since the AML took effect, Chinese authorities have issued both formal notification guidelines and draft notification rules to establish basic procedures for filing and reviewing pre-concentration notifications in China. In addition to the formal notification guidelines and draft notification rules, two highly publicized merger decisions by China’s Ministry of Commerce (“MOFCOM”) provide some insight into China’s fledging concentration control regime. These two cases, which were met with mixed feelings around the globe, are the only two published concentration review cases to date. The first relates to InBev N.V./S.A.’s acquisition of Anheuser-Busch Companies Inc. (the InBev/AB Case), and the second pertains to the Coca-Cola Company’s proposed acquisition of Huiyuan Juice Group (the Coca-Cola/Huiyuan Case).
To date, China’s concentration control rules remain rudimentary compared with their more developed counterparts in the United States and European Union, and uncertainties surrounding the review standards and procedures abound. Though the formal notification guidelines and draft notification rules serve as a starting point for businesses to parse out how MOFCOM will deal with proposed transactions, perhaps for businesses it is more important to understand how the government will apply these rules by analyzing real cases.