A Study On The Legal System Of Antimonopoly Review Of Foreign Capital M & A

Following economic globalization and China’s entrance into the WTO, Anti-monopoly Law of the People’s Republic of China took effect in 2008, becoming one of the symbols of a new model in the process of development of the foreign investment policies in China.From 2009 to 2011, China has formulated a series of supporting regulations of anti-monopoly law. For example "Interim Provisions on Assessing the Impact of Concentration of Business Operators on Competition", and "Working Guidelines of the Anti-Monopoly Bureau of the Ministry of Commerce on the Concentration of Undertakings" etc., which gave way to a gradual implementation of more detailed rules especially aimed to control the anti-monopoly review on foreign investors’ merger and acquisition (hereinafter as "M&A"), a process which unified the domestic and foreign levels of comprehensive systems of control of concentrations of many kinds of M&A. Additionally, they set up a relatively complete system of anti-monopoly review. Thanks to the process of legal harmonization in this direction, the reports generated by anti-monopoly authorities have achieved a high degree of transparency. Under the recent developments in the system of anti-monopoly review, many M&A operations have been approved with conditions.This paper is divided in four chapters, an introduction and a conclusion.The first chapter provides a general overview on the Chinese system of the anti-monopoly law. First, a definition and a general presentation of meanings, use and executive agencies involved in the concept of the anti-monopoly will be given; second, in order to show the most important evolution trends related to development of the anti-monopoly law after the publication of the "Anti-Monopoly Law of the People Republic of China " in 2008, an introduction to the "Anti-Monopoly Law of the People Republic of China " and the related supporting regulation will be made; and finally, an introduction to the enforcement system’s scope and purpose, as well as an analysis of the related institutional structure’s powers and functions.In the second chapter the relation between foreign investors’M&A and anti-monopoly law will be discussed. From publication of "Interim Provisions on the Mergers and Acquisitions of Domestic Enterprises by Foreign Investors" in 2003, which defines for the first time the concept of the foreign mergers together with the anti-monopoly review system of the foreign capital M&A, until the publication of the "Provisions of the State Council on the Thresholds for Declaring Concentration of Business Operators"a comparative analysis between the existent legal provisions towards foreign capital and domestic enterprises M&A, exploring the legal provisions in connection to the foreign M&A and its enforcement will be given. On one hand, analysis of the concept of foreign M&A, as well as a comparison with the domestic M&A will be made basing on the existing regulation, exploring the related legal provisions and enforcement conditions. On the other hand, foreign capital M&A particular aspects will be analysed. Executive agencies, enforcement procedure, declaration standards and specific aspects, e.g. chapter 4 of "Working Guidelines of the Anti-Monopoly Bureau of the Ministry of Commerce on the Concentration of Undertakings’The third chapter will focus on the scope and standards of anti-monopoly review on foreign investors’ M & A. More deep research will be presented on the anti-monopoly review process, scope of its application, its standards of review, as well as the details and related questions and an analysis on the concepts of operators’ concentration and relevant markets.The fourth chapter will analyse foreign investors’M&A review procedures and approval with conditions. First of all, relevant details on the procedure will be provided, then a definition and scope of approval with conditions and an analysis of the contents of public announces by the Ministry of Commerce in relation to the review with conditional approval, the main factors at the base of the decision, related legal provisions, standards and real cases. Finally, the relation with other factors contributing to the conditional approval will be analysed, relevant opinions, and conclusions will be provided in relation to the foreign capital M&A together with suggestions on further steps to enhance the existing system in China.