When a merger, acquisition or joint venture is connected to the Chinese market and is treated as a concentration under China’s Anti-monopoly Law, a company’s first question to its lawyer is likely to be whether the transaction must be filed with the Ministry of Commerce.

The reason for the problem is clear. The law and relevant regulations state that a concentration which meets the filing threshold must be filed. However, the low threshold for filing a concentration in China means that the understaffed ministry has a large number of filings to review. As a result, filing is a time-consuming process. Chinese competition lawyers will also be aware that there are no specific provisions of law that penalise failure to file. Some undertakings weigh the risk of being caught against the potential time saving and choose to not to file, instead discreetly proceeding with the transaction. This practice has become an open secret in China.Continue Reading Can Companies Avoid Filing Concentrations?

The Seller/Buyer Warranty and Indemnity Insurance is a new type of insurance in the global insurance market. The Purpose of this insurance is to against the risks involved in the M&A process, especially those risks generated by the misrepresentation of the parties. The insured target of the Seller/Buyer Warranty and Indemnity Insurance is the representation and warranty provision in the M&A contract. Continue Reading The First Chinese Seller/Buyer Warranty And Indemnity Insurance Policy Is Underway

Since the Ministry of Commerce (MOFCOM) promulgated its decision to block the acquisition of Huiyuan Juice Group by The Coca-Cola Company, the decision has been subject to tremendous criticism from trade lawyers and economists. Some have argued China appears willing to wield its Anti-monopoly Law to fend off foreign attempts at buying promising domestic firms (though Huiyuan was incorporated in the Cayman Islands), even when the resulting market concentration would not be excessive.

Continue Reading Coca-Cola & Huiyuan: Explanation, Theory, An attempt to Rationalize?

Today afternoon, just twenty minutes ago, Ministry of Commerce (MOFCOM) promulgated its decision regarding the concentration between The Coca-Cola Company and China Huiyuan Juice Group Limited, which prohibited this acquisition. This prohibition decision is the first prohibition decision issued by MOFCOM since the enforcement of Chinese Anti-monopoly Law (AML).
On September 3, 2008, The Coca-Cola Company announced its intention to make cash offers to purchase China Huiyuan Juice Group Limited; a Hong Kong listed company which owns the Huiyuan juice business throughout China.

Continue Reading The Prohibition Decision Regarding M&A between Coca-Cola and Huiyuan

It is difficult to overstate the importance of concentration control regulations in the broader context of Chinese Anti-trust law as regulated by the Anti-monopoly Law of the People’s Republic of China (Anti-monopoly). No area of anti-monopoly enforcement commands closer scrutiny or arouses more impassioned debate. In fact, creating a proper definition for concentration was the most vigorously contested issue during the drafting of the new Anti-monopoly Law.Continue Reading The Concept of Concentration under Chinese Anti-trust Law