Three recent decisions indicate that China may be considering more than competition in its antitrust reviews

by Matthew Bachrack, Cunzhen Huang, and Jay Modrall

China’s new Antimonopoly Law (AML) took effect last August. The AML introduced a new mandatory regime for the review of mergers, acquisitions, and joint ventures. In the past year, guidelines and rules have been published that clarify the Ministry of Commerce’s (MOFCOM) procedures for enforcing the new regime, and MOFCOM’s decisions have been published in three high-profile cases. There are, however, still important uncertainties about MOFCOM’s procedures and substantive analysis. In fact, the three published merger decisions—InBev/Anheuser-Busch, Coca-Cola/Huiyuan, and Mitsubishi/Lucite—have reinforced the notion that MOFCOM may use the AML to achieve goals unrelated to competition law. Now, roughly a year after the AML took effect, it is time to evaluate China’s new merger-control regime and assess the implications of recent cases.

Notification: Unanswered questions

Although new guidelines and rules published in early 2009 clarify many questions about notifications under the AML, several concerns remain, especially for foreign multinationals:

  • Notifications require a significant amount of information. Although many jurisdictions require extensive up-front information in a merger notification, MOFCOM’s rules do not provide for simplified notifications in cases that raise no substantive issues. This problem is exacerbated by the fact that notifications must be accompanied by vaguely but broadly defined categories of documents that are rarely relevant to the antitrust analysis of concentrations. For example, MOFCOM requires the production of “reports in support of the concentration agreement,” including feasibility studies, due diligence reports, research reports on industry development, reports on the concentration plan, and forward-looking reports on the prospects of the parties after the transaction, all of which must be translated into Chinese. Locating such reports might require a search of thousands of files and e-mails, yielding enormous volumes of material that must be reviewed prior to translation and submission.
  • The breadth and vagueness of these requirements, in practice, give MOFCOM broad powers to claim that the notification is incomplete and halt the review. For example, the Coca-Cola Co. announced its proposed acquisition of China Huiyuan Juice Group Ltd. on September 3, 2008 and filed its pre-merger notification on September 18. At MOFCOM’s request, Coca-Cola supplemented the filing four times before it was considered complete on November 19. The statutory review period finally began on November 20, two months after the initial filing. To mitigate the risk of such delays, notifying parties may be well advised to conduct pre-notification consultations.

The draft guidelines and rules also fail to resolve several additional ambiguities. These include:

  • The definition of “control.” The draft Provisional Rules on the Notification of Concentrations of Undertakings (draft notification rules), released for comment in January, create potential confusion because they define the term “control,” which includes rights to influence an undertaking’s management, but not “decisive influence.” (A concentration arises under the AML when an undertaking obtains “control” or “decisive influence” over another undertaking.) MOFCOM’s Antimonopoly Bureau has clarified that the acquisition of “protective” minority rights will not result in the acquisition of “control.” The draft notification rules give some examples of “protective” minority rights, such as the right to veto modifications of articles of association, increases and decreases of capital, and liquidation.
  • Whether joint ventures, in the PRC corporate law sense of the term, are notifiable where no joint control exists. The draft notification rules confirm that the “joint establishment” of a “new entity” by two or more entities constitutes a concentration under Article 20 of the AML. The draft notification rules indicate that “specific function” joint ventures (joint ventures that only carry out specific functions for their parent companies, such as research and development, sales, and production of certain products) may not be notifiable—and that a joint venture will be notifiable only if it is established on a lasting basis and independently operated. The recently announced BHP Billiton/Rio Tinto transaction will be a good test case of MOFCOM’s treatment of joint ventures. Interestingly, in a June 15 interview regarding the notifiability of this transaction, MOFCOM’s spokesperson focused on turnover thresholds and did not mention a requirement that the joint venture be “full function.” As CBR went to press, MOFCOM had not received a merger control notification regarding the BHP Billiton/Rio Tinto joint venture.
  • Whether a notification can be filed based on a letter of intent or similar document, or based only on a binding agreement;
  • The standards used to determine the confidentiality of materials submitted by parties to MOFCOM;
  • The level of protection afforded to materials deemed confidential by MOFCOM; and
  • The level of protection that will be afforded to materials subject to internationally recognized legal privileges.

Review: MOFCOM’s role

The draft Provisional Rules on the Review of Concentrations of Undertakings (draft review rules) give notifying parties the right to make statements and to bring a defense. They also state that MOFCOM may seek the opinions of other government agencies, industry associations, customers, and other undertakings and that it may convene confidential hearings.

MOFCOM may decide to initiate a Phase II investigation after its preliminary review. If it does so, it must notify the parties in writing. In Phase II, if MOFCOM concludes that a concentration has eliminated or restricted competition or is likely to do so, it may send the notifying parties a statement of its objections that sets a reasonable time limit for the undertakings to submit a written defense.

If MOFCOM determines that a notified concentration would harm competition, it can prohibit the transaction or attach restrictive conditions. Both types of decisions (but not others) must be published in a timely manner. It appears that either the notifying parties or MOFCOM may suggest conditions, which may include structural remedies, behavioral remedies, and combinations thereof. It is unclear whether the proposed conditions need only alleviate, as opposed to remove, the anticompetitive effects of the transaction.

If MOFCOM issues a decision to prohibit or impose restrictions on a proposed concentration, the companies involved are entitled to ask MOFCOM to reconsider its decision. If they are dissatisfied with the outcome of the reconsideration, they may sue MOFCOM in PRC court or appeal to the State Council to reverse the decision.

Substantive review: Not entirely clear

MOFCOM must review the notification to determine whether a concentration “will or may eliminate or restrict market competition.” It also retains discretion to permit concentrations that would harm competition if the notifying parties show that the advantages of the concentration outweigh the disadvantages, or if the concentration “is in line with the social and public interest.” Several points remain unclear, however:

  • The extent to which a concentration must restrict competition and the level of probability that a concentration would restrict competition that MOFCOM must establish before it can prohibit the transaction;
  • Whether pure private efficiency gains will be a sufficient basis upon which to clear a concentration that would otherwise be prohibited; and
  • The meaning of “social and public interest” in Article 28 of the AML.

Moreover, acquisitions of Chinese companies by foreign entities may be subject to additional scrutiny if the acquisition concerns China’s national security, a key industry, or transfer of the de facto control of a domestic enterprise that owns a well-known trademark or an old Chinese trade name.

Market definition: Guidelines too formalistic?

The AML defines the term “relevant market” but does not provide any guidance on how MOFCOM will determine the relevant markets in a particular transaction. MOFCOM has issued draft Guidelines on the Definition of Relevant Markets (draft market definition guidelines) to help parties define relevant product and geographic markets. The draft market definition guidelines list a number of factors to be considered when defining relevant markets. When the definition of the relevant market is more complex, the draft market definition guidelines adopt the “hypothetical monopolist” test. This contrasts with EC and US practice, where this test provides a conceptual basis for the definition of relevant markets. In principle, the “hypothetical monopolist” test should apply to each case, not only the complex ones.

Recent precedents shed light on future reviews

As of March 18, 2009 (the most recent date on which MOFCOM announced statistics), MOFCOM had received 40 notifications under the AML and accepted 29 as complete. The ministry had reviewed 25 transactions, of which 23 were unconditionally cleared, one (InBev/Anheuser-Busch) was approved subject to conditions, and one (Coca-Cola/Huiyuan) was prohibited. Since that time, Mitsubishi/ Lucite was also approved subject to conditions. Since MOFCOM is obliged to publish only prohibition and conditional clearance decisions, public information is available only for these three cases.

InBev/Anheuser-Busch

On November 18, 2008, MOFCOM approved, with conditions, InBev NV/SA’s acquisition of Anheuser-Busch Cos., Inc. (AB). The ministry found that the acquisition would not eliminate or restrict competition in the Chinese beer market.

Because MOFCOM determined that the “transaction size is huge, the new entity after the merger will have substantial market share, and its competition ability will be sharply increased,” the decision limited InBev’s ability to expand its market share by placing restrictive conditions on its acquisition of AB. InBev must obtain MOFCOM’s approval before increasing AB’s equity interest in Tsingtao Brewery Co., Ltd.; increasing its equity interest in Zhujiang Brewery Co., Ltd.; or seeking any equity ownership in Chinese Resources Snow Breweries Ltd. or Beijing Yanjing Beer Group, Corp. In addition, InBev must promptly notify MOFCOM of any change in InBev’s controlling shareholders and the shareholders of those controlling shareholders.

Coca-Cola/Huiyuan

MOFCOM on March 18, 2009 blocked Coca-Cola’s planned acquisition of Huiyuan in the first prohibition decision adopted under the AML. This case had been closely watched as an indication of MOFCOM’s approach to foreign companies’ acquisitions of well-known Chinese companies.

In its decision, MOFCOM identified the following adverse impacts from the proposed transaction:

  • Coca-Cola would be able to leverage its dominant position in the carbonated soft-drink market to the fruit-juice drink market, eliminating and restricting competition from current juice manufacturers and in turn damaging the lawful interests of juice consumers. Although the decision did not indicate how Coca-Cola could leverage its position in carbonated soft drinks, MOFCOM’s press release referred to the possibility that Coca-Cola could engage in tying, bundling, or other forms of exclusive dealing.
  • Coca-Cola’s market power in the juice market would be markedly enhanced by controlling two famous juice brands, Meizhiyuan (Minute Maid) and Huiyuan. The transaction would significantly raise entry barriers for potential competitors in the fruit-juice drink market.
  • The transaction would reduce the space available to domestic small and medium-sized juice manufacturers and negatively impact the ability of domestic enterprises to compete and innovate independently in the fruit-juice drink market.
  • The transaction would have adverse impacts on the competitive landscape in China’s fruit-juice drink market and the sustainable and healthy development of the domestic juice industry.

MOFCOM apparently considered claimed efficiencies, because the decision refers to the effects of the transaction on technological advances and on consumers. It determined, however, that the parties failed to provide sufficient evidence to prove that the positive impact of the transaction on competition would outweigh the negative impact or that the transaction “conformed to the requirements of social and public interests.” The decision appears to suggest that the notifying parties bear the burden of showing that efficiencies outweigh the adverse effect on competition, if any. The decision also indicates that Coca-Cola proposed remedies that MOFCOM judged insufficient.

Mitsubishi/Lucite

On April 24, 2009, MOFCOM approved, with conditions, Mitsubishi Rayon Co., Ltd.’s acquisition of Lucite International Group Ltd. Notably, this decision provided significantly more detail than prior decisions.

MOFCOM identified the following negative impacts on a Chinese market for methyl methacrylate (MMA). The companies are horizontal competitors and would have had a combined market share of 64 percent after the transaction. In addition, since Mitsubishi competes in MMA and two downstream markets, after the completion of the transaction, the combined company would be able to restrict its downstream competitors’ access to MMA thanks to its dominance upstream. As a result, MOFCOM determined that the concentration would eliminate or restrict competition and adversely affect competition in the Chinese MMA market and its downstream market.

Again, the parties proposed remedies. After negotiating the scope of the remedy, the parties and MOFCOM agreed to the following:

  • The right to purchase 50 percent of Lucite (China)’s annual MMA production for five years at cost will be divested to a third party;
  • Lucite (China) shall operate independently from the MMA monomer business operations of Mitsubishi Rayon in China with independent management and board of directors between the closing of the proposed transaction and the completion of the divestment;
  • For five years after the transaction closes, Mitsubishi Rayon may not, without the prior approval of MOFCOM, acquire any producer of, or establish any new plant for, MMA monomer, PMMA polymer, or cast sheet in China.

Continuing the confusion as to whether remedies must “eliminate” or merely “reduce” negative effects on competition, the decision states that MOFCOM and the parties negotiated remedies to “reduce” the negative effects of the transaction but then notes that the agreed-upon remedies “fully eliminate” the adverse impact of the concentration.

Implications cast doubt

The implications of MOFCOM’s substantive appraisal of these high-profile transactions under the AML are significant:

  • MOFCOM’s willingness to impose restrictive conditions on InBev/Anheuser-Busch and Mitsubishi/Lucite, and to prohibit Coca-Cola/Huiyuan, show that it is prepared to play an active enforcement role under the AML.
  • MOFCOM’s imposition of limitations on InBev/AB acquiring additional shares in named competitors was highly unusual from a Western antitrust perspective, particularly given MOFCOM’s failure to identify any anticompetitive harm caused by the transaction. Similarly, the stipulation that Mitsubishi may not add MMA capacity in China is contrary to generally accepted antitrust principles. It is unclear how future additions of capacity could result in harm to consumers. This requirement may fuel suspicion that MOFCOM will use the merger review process to achieve goals unrelated to its mission.
  • MOFCOM’s prohibition of Coca-Cola/Huiyuan was also widely criticized. The decision’s reference to leveraging suggests that MOFCOM applied a conglomerate effects theory of the kind abandoned many years ago in the United States and applied by the European Community only rarely, cautiously, and in situations where the evidence has been compelling.
  • Although MOFCOM’s spokesperson stressed that the Coca-Cola/Huiyuan decision was based solely on competition law, the decision’s references to the transaction’s effect on domestic small and medium-sized manufacturers and the sustainable and healthy development of the Chinese fruit-juice drink industry suggest that industrial policy considerations played a significant role. If so, MOFCOM’s approach could be consistent with the AML requirement that MOFCOM take account of the “development of the national economy” and “other considerations that may affect market competition as identified by the AML enforcement authority.” In this regard, MOFCOM may have been influenced by recent publicity in China regarding the alleged negative effect of foreign acquisitions on prominent national brands, such as Mininurse, Nanfu, and Lebaishi.
  • That MOFCOM would consider the broader implications of notified transactions should perhaps be unsurprising because the AML requires MOFCOM to take broad economic factors into account. Nonetheless, the decision may give pause to Western companies considering acquisitions of high-profile Chinese companies, particularly companies with prominent local brands.
  • In all three transactions, the outcome demonstrates MOFCOM’s willingness to use the merger-control process to address the possibility of future non-merger-specific harm. Although the government would have the power to review the prohibited future transactions or behavior if and when the need arose, MOFCOM preferred to prohibit the transactions now.
  • All three published decisions are short, and MOFCOM’s analysis is less clear and complete than comparable decisions under the EC Merger Regulation and US regulations. (Though the United States does not typically publish details regarding clearance decisions, the agencies do provide details regarding decisions to block a transaction or to clear it with conditions.) Notably, in Coca-Cola/Huiyuan, the decision does not describe how MOFCOM defined the relevant market or discuss the market shares of the parties or their competitors or whether the parties are close competitors.
  • More generally, none of the decisions articulates a clear theory of harm with supporting evidence that would justify the outcome. On the other hand, MOFCOM’s decisions in these three cases suggest that, from a procedural perspective, it takes a flexible approach to remedies. MOFCOM apparently suggested remedies to Coca-Cola, and there is no suggestion in the decision or in press reports that the submission of remedies was subject to particular formal or standard timing requirements. From a substantive perspective, there is confusion between the decision itself and a follow-up press release as to whether remedies under the AML need only alleviate, as opposed to remove, the anticompetitive effects of the transaction.

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Who Must Notify

China’s Antimonopoly Law requires parties to a concentration to notify the Ministry of Commerce (MOFCOM) when mergers, share or asset purchases, or other transactions result in the acquisition of control or the ability to exercise decisive influence if the companies involved meet certain turnover thresholds. The Regulation on Notification Threshold of Concentrations between Undertakings, adopted on August 3, 2008, requires parties to notify MOFCOM if:

  • In the previous accounting year, the worldwide aggregate turnover of the parties to the concentration exceeded ¥10 billion ($1.5 billion), and at least two of those parties each had individual turnover in China in excess of ¥400 million ($58.6 million); or
  • In the previous accounting year, the aggregate turnover in China of the parties exceeded ¥2 billion ($293 million), and at least two of those parties each had individual turnover in China in excess of ¥400 million.

In addition, as in the United States (but unlike in many other countries), MOFCOM may investigate concentrations that do not meet the turnover thresholds but that might nonetheless eliminate or restrict competition. There is no time limit on MOFCOM’s ability to investigate such concentrations. Parties to a concentration that need not be notified to MOFCOM but that raises competition concerns should consider engaging MOFCOM or filing voluntarily.

Matthew Bachrack, Cunzhen Huang, and Jay Modrall[/box]

[author]Matthew Bachrack is senior attorney at Cleary Gottlieb Steen & Hamilton LLP in Hong Kong. Cunzhen Huang is associate, and Jay Modrall is partner, at Cleary Gottlieb Steen & Hamilton LLP in Brussels, Belgium.[/author]

Posted by Matthew Bachrack, Cunzhen Huang, and Jay Modrall