MOFCOM’s New Interim Provisions on the Assessment of Anti-Competitive Effects of Mergers

On 2 September 2011, the PRC Ministry of Commerce (the “MOFCOM”) published on its website the Interim Provisions on Assessment of Competitive Impact of Concentrations of Business Operators (the “Interim Provisions”), which came into effect on 5 September 2011. The Interim Provisions elaborate on the five factors to be considered by MOFCOM in evaluating the anti-competitive effect of a concentration, set out in Article 27 of the PRC Anti-monopoly Law. While the Interim Provisions are consistent with the internationally accepted analytical framework for the assessment of mergers, they are too brief and high level to provide meaningful guidance. They also demonstrate MOFCOM’s reluctance to apply any specific “safe harbours” or “presumptions”. Although perhaps disappointing, this is not surprising given the early stage of development of merger control in China.

In addition, on 27 July 2011, the US and PRC competition enforcement agencies signed a memorandum of understanding setting out the basis for further communication and cooperation between them.

Please click here to read the full memorandum.

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