New M&A review process to be launched

The Ministry of Commerce (MOFCOM), the regulator responsible for review of acquisitions and mergers under China's Anti-Monopoly Law, announced Thursday that it has drafted a simplified review procedure that will benefit applicants by offering a shortened review period.

Under the new procedure, MOFCOM will complete the review in less than a month, compared with the normal procedure that lasts longer than 30 days, Shang Ming, director general of the Anti-Monopoly Bureau under MOFCOM, said at a press conference Thursday.

Mergers and acquisitions (M&A) often draw public attention, as they involve global transactions. The ministry is known for blocking Coca Cola's $2.4 billion deal to buy China's largest fruit juice maker Huiyuan Juice Group in 2009.

Applicants must meet certain conditions in order to be eligible for the simplified procedure, one of which is that their deal will lead to a market share of less than 10 percent, according to the draft rule, which will be subject to approval from lawmakers, Shang noted.

"It is expected to be implemented in 2013," Shang said.

The simplified procedure is in response to public concerns that the current review procedure takes too long, Huang Yong, a law professor with the Beijing-based University of International Business and Economics, told the Global Times Thursday.

Huang is a member of the team that drafted China's Anti-Monopoly Law, and a consultant to MOFCOM.

Together with the simplified procedure, another rule regarding conditional approval for M&A is also expected to be released next year under the framework of China's Anti-Monopoly Law, which has been effective since August 2008.

The new rule explains under which circumstances conditional approval will be given and measures for dealing with disagreements, Shang noted.

The number of M&A applications filed so far this year has reached 186, about the same as last year. The number is expected to be stable over the next two years, Shang said.

Meanwhile, MOFCOM has closed 154 cases this year, with 142 approved unconditionally, six conditionally and another six withdrawn by the applicants, according to the regulator.

The conditionally approved cases include Western Digital's acquisition of Hitachi Global Storage Technologies, Google's buyout of Motorola Mobility, and US retail giant Wal-Mart's acquisition of Niuhai Holding, parent company of China's largest online supermarket, Yihaodian.

The key standards in MOFCOM's review are concentration of market share and transfer of control.

The vague definition of control makes the review difficult, according to Shang, who expressed hope that lawmakers and the State Council can work out further details.

People normally think that a 51 percent stake in a company is a controlling stake, but there are many cases that are more complicated in practice, Huang said.

Certain cases still need to be clarified under the Anti-Monopoly Law, he said, such as whether it counts as transfer of control if a principal shareholder who owns less than a 50 percent stake in a company wants to transfer the shareholding.

Antitrust enforcement in China is overseen by MOFCOM, the National Development and Reform Commission, and the State Administration for Industry and Commerce.