China Amends M&A Rules
On June 22, 2009, the Ministry of Commerce
("MOFCOM") issued an amendment (the "Amendment to the M&A Rules") to the
existing Rules on the Mergers and Acquisitions of Domestic Enterprises by
Foreign Investors (the "M&A Rules").
Under the original M&A Rules, many factors such as sales revenue,
market share before or after the M&A, or the number of enterprises acquired
may have triggered an antitrust filing requirement for an onshore M&A
transaction. For offshore M&A transactions, in addition to the above
criteria, assets owned or number of enterprises invested in within China may
also have subjected the parties to an antitrust filing. The Amendment to the M&A Rules adopts a
new approach by requiring the parties to determine whether an antitrust filing
with respect to the subject transaction shall be conducted in view of the
Provisions on Filing Threshold of Business Operator Concentration (the "Antitrust
Filing Provisions"), under which only meeting the threshold of sales revenue
would lead to a filing requirement. The
Amendment to the M&A Rules has brought the M&A Rules, promulgated on
September 8, 2006, in line with the current Antitrust Law and the Antitrust
Filing Provisions, which helps to unify filing standards for antitrust reviews.
Copyright ©2009 by Kaye Scholer LLP. All Rights Reserved. This publication is intended as a general guide only. It does not contain a general legal analysis or constitute an opinion of Kaye Scholer LLP or any member of the firm on the legal issues described. It is recommended that readers not rely on this general guide but that professional advice be sought in connection with individual matters.References herein to "Kaye Scholer LLP & Affiliates," "Kaye Scholer," "Kaye Scholer LLP," "the firm" and terms of similar import refer to Kaye Scholer LLP and its affiliates operating in various jurisdictions.