MOFCOM Updated Rules on Merger Control Filing

Authored by Michael Gu (michaelgu@anjielaw.com) and Yu Shuitian from AnJie Law Firm

Introduction

MOFCOM released the amended Guiding Opinions on Notification of Concentration of Undertakings (“Guiding Opinions”) on June 6, 2014. The amendments significantly expanded the content of the previous 2009 version of the Guiding Opinions. The number of articles in the Guiding Opinions is now 30, in comparison to 12 of the 2009 version. This is the third regulation on merger control issued by MOFCOM in 2014. Another merger control related regulation concerning the imposition restrictive conditions is currently being drafted and might be published this year as well. Among other things, four important areas of merger control filing that gave rise to a great deal of discussion in the past have now been clarified under the Guiding Opinions. These four areas include definition of control, calculation of turnover, status of joint venture in identifying concentration and pre-notification consultation.

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Last Hurdle for Merck's Acquisition of AZ Electronics Removed: MOFCOM's 23rd Conditional Clearance

Authored by Dr. Zhan Hao and Dr. Song Ying

Following the antitrust watchdog in Germany, Japan, Taiwan and the United States, the Ministry of Commerce of the People's Republic of China (MOFCOM) conditionally cleared Merck KGaA’s (Merck) acquisition of AZ Electronic Materials S.A. (AZ Electronics) on April 30, 2014. It means that Merck has won the last pass it needed to wrap up the takeover.

As the world's oldest chemical and pharmaceutical company, Merck was founded in Darmstadt in 1668. The company was privately owned until going public in 1995. The Merck family, however, still controls a majority (roughly 70%) of the company's shares.

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China Issues New Insurance Merger Rules

Authored by Dr. Zhan Hao and Dr. Annie Xue

clevel play ground, optimizing industry structure, promoting competitiveness, and enriching the risk management tool kit of the insurance institutes”, quoting a statement of CIRC posted on its website. [1]

Promotion of Competition

CIRC’s partially relaxed mergers and acquisition rules in the insurance sector are expected to help facilitate market entry and expand the footprint of private capital, including the domestic and China-based foreign-funded insurance firms.

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MOFCOM Raised Specific Concerns over Adjacent Markets in Its Merger Review - Brief Analysis on Merck's acquisition of AZ Electronic Materials

Authored by Michael Gu and Shuitian Yu

Introduction

On April 30, 2014, China’s Ministry of Commerce (“MOFCOM”) granted a conditional clearance on the proposed $3.1 billion acquisition of London-listed AZ Electronic Materials S.A. (“AZ”) by Merck KGaA (“Merck”) in accordance with the Anti-Monopoly Law. AZ is a special chemical material supplier to the electronics industry, and Merck is a leading company engaging in the production and sales of biopharmaceutical, life science instruments and specialty chemicals. MOFCOM imposed following behavioral conditions that are binding for three years: (1) Merck shall not engage in tying of its product and AZ’s product, (2) when licensing its patents on liquid display crystals based on non-exclusive and no-sublicensing terms, all the terms should be reasonable and non-discriminatory, and (3) any licensing of liquid display crystals related patents by the combined company shall be reported to MOFCOM in advance.

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At Last, MOFCOM Formally Adopted Simplified Merger Review Procedur

Authored by Michael Gu and Shuitian Yu

Introduction

The Ministry of Commerce (“MOFCOM”) finally published the Guiding Opinions on Notification of Simple Cases of Concentration of Undertakings (the “Guiding Opinions”) on 18 April 2014, two months after the Interim Provisions on Standards Applied to Simple Cases of Concentration of Undertakings (the “Interim Provisions”), which were released in February this year. The purpose of the Interim Provisions is to reduce heavy workload for both MOFCOM and the notifying undertakings and to accelerate the review process. However, the Interim Provisions mainly set out the eligibility criteria for simple cases entitled to the simplified procedure and provide no guidance on the specific procedural issues. The issuance of Guiding Opinions signals the formal implementation of the simplified merger review procedure. The Guiding Opinions clarify certain practical issues in relation to the “simple case” review such as the requirements for submission of documents, consequence of the identification of “simple case” status, the timeline for deciding on “simple case” status. According to the Guiding Opinions, the filing parties’ load of paperwork will be significantly reduced compared with that under the normal review procedure. Nevertheless, the status of “simple case” does not necessarily guarantee a “phase one clearance”. Parties to the concentration shall be cautions in using such so-called “fast track” mechanism and be aware of the potential risk of longer notification process resulting from revocation of “simple case” status.

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MOFCOM Published Interim Provisions on Standards Applied for Simple Merger Cases

Authored by Michael Gu (michaelgu@anjielaw.com)

During the first week after the Chinese New Year Holiday, the Ministry of Commerce (“MOFCOM”) published long-awaited rules on merger control cases subject to summary procedure, i.e. Interim Provisions on Standards Applied for Simple Cases of Concentration of Undertakings (“Interim Provisions”). The Interim Provisions came into effect on 12 February 2014. It has taken more than 10 months for MOFCOM to finally promulgate the Interim Provisions since the consultation draft was published for seeking public comments on 3 April 2013. However, compared with last year’s consultation draft, which contained only 7 articles, the Interim Provisions is even simpler with 6 articles in total. Except where the Interim Provisions dropped one article and made a few clarifications, no significant improvement or changes have been made to the consultation draft. The Interim Provisions mainly set out the criteria for concentrations that are suitable for treatment under the simplified review procedure. Though the Interim Provisions do not address some key procedural issues in relation to simple cases, it is expected that MOFCOM will soon release relevant supporting procedural rules and further optimize the merger control review mechanism.

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Briefing Note: Updates of Merger Policy Initiatives and Cases

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com), Dr. Annie Ying Xue (xueying@anjielaw.com)

The Chinese merger review agency, Ministry of Commerce (MOFCOM), has been active in releasing draft merger regulations for public comments and conditionally approving merger deals.

1.      MOFCOM Solicitation for Public Comment on the Interim Provisions on the Applicable Standards in Simple Cases of Concentrations of Undertakings (Consultation Draft)

On April 3, 2013, MOFCOM released the Interim Provisions on the Applicable Standards in Simple Cases of Concentrations of Undertakings (Consultation Draft) (Draft Standards) for public comment. The consultation period ended on May 2, 2013.

The Draft Standards is a follow-up action of an announcement of the policy initiative regarding simplified procedures for certain mergers by MOFCOM in 2012. It is noteworthy that the proposed rules merely deal with the definition of simple cases, and do not touch on procedural issues.

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MOFCOM Conditionally Approves Marubeni's Acquisition of Gavilon

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com), Dr. Annie Ying Xue (xueying@anjielaw.com)

On April 22, 2013, the Ministry of Commerce (MOFCOM) announced its conditional approval of Marubeni Corporation (Marubeni)’s acquisition of Gavilon Holdings (Gavilon).

The acquiring company is a comprehensive trading company headquartered and listed in Japan. Marubeni engages in international trade spanning from food materials, food, raw materials, chemicals, energies, metals, mineral resources, to transportation machineries. Having 24 subsidiaries and branches with mature distribution channels and logistics storage facilities in China, Marubeni has been taking the lead in importing staple agricultural products into China in two consecutive years since 2011.

Headquartered in the U.S., the acquired company is a private staple commodity management firm that chiefly deals with grain, fertilizer, and energy products globally. Gavilon ranks third in North America in terms of procurement, storage and trading of grain and has one branch in China.

On May 29, 2012, the two companies entered into an equity interest purchase agreement, according to which Marubeni would acquire all equity interest of Gavilon through Gold Marble, a newly established wholly-owned U.S. subsidiary of Marubeni.

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Last Hurdle Cleared: Glencore and Xstrata Get Approval from MOFCOM

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com), Dr. Song Ying (songying@anjielaw.com)

On 16 April 2013, China’s Ministry of Commerce (“MOFCOM”) posted the No. 20 Notice of 2013 on its website, finally giving green light to the Glencore/Xstrata deal, which is the largest merger in mining history.

The approval of review process has been waited for more than one year. The MOFCOM issued the approval with certain restrictive conditions on the deal in the end, following merger review agencies of other relevant jurisdictions, such as EU, South Africa and Australia.

According to the Notice, Glencore and Xstrata have horizontal overlaps and vertical relations in several relevant markets. In the comprehensive competition analysis, the competition concerns of MOFCOM’s were mainly focused on three relevant markets, including the copper, zinc and lead concentrate markets.

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