Thursday, January 13, 2011
Posted by D. Daniel Sokol
Yee Wah Chin, Ingram Yuzek Gainen Carroll & Bertolotti, LLP has posted M&A Under China’s Anti-Monopoly Law: Emerging Patterns.
ABSTRACT: China’s Anti-Monopoly Law became effective on August 1, 2008, following its enactment on August 30, 2007 after 13 years of drafting. Since then, businesses and lawyers with interests in China have closely followed every development. While there have been draft and final regulations issued by the enforcement agencies on most aspects of the AML, and complaints citing the AML have been filed in the courts and with the agencies alleging monopolistic conduct, the most closely watched developments have been on the M&A front. All but one of the announced government enforcement actions to date have involved transactions. It is clear that China’s merger control regime is becoming the third major antitrust hurdle for large, cross-border transactions, along with the U.S. and the EU. This article summarizes the AML, reviews provisions relating to mergers and acquisitions, and discusses patterns emerging in China’s application of the AML in the M&A area.
There appear to be emerging patterns of industrial policy and nationalism trumping competition policy, greater procedural flexibility in the merger control regime than apparent at first glance, and analytic approaches that may have been abandoned elsewhere. Nonetheless, the increasingly detailed published MOFCOM decisions reflect a policy of increasing transparency and applying economic analysis in merger control, to be in the antitrust mainstream.