Study On The Antimonopoly Legal System Regarding To Cross-border Mergers And Acquisitions

The fifth wave of cross-border mergers and acquisitions, which has been thriving since the1990s lastcentury following the former four waves earlier, is going on with a greater volume of transactions, coveringa broader range and involving more industries. Since the reform and opening policy, especially after joiningWTO, China’s economy has been experiencing a deeper and faster integration with the world’s economicglobalization, therefore cross-border mergers and acquisitions inevitably gave a greater impact on China.Through mergers and acquisitions, many foreign multinational companies not only took over a greatnumber of outstanding Chinese enterprises and trademarks, and also fulfilled the purpose of paralyzing theChinese national brands thereby to unify the Chinese market. Aiming to regulate the mergers andacquisitions by foreign investors, China had enacted foreign investment law and applied the related clausesof “securities law” as well as “competition law” before the implementation of the2008"anti-monopolylaw”, to which “Regulations on Merger and Acquisition of Domestic Enterprises by Foreign Investors” and“Notice of the General Office of the State Council on the Establishment of Security Review SystemRegarding Merger and Acquisition of Domestic Enterprises by Foreign Investors” unveiled respectively inthe purpose of coordinating and refining, thus there are laws to abide by in the realm of cross-bordermerger and acquisition. However, because of the theoretical study is not yet ripe, the administrative systemis still not perfect, and some of the necessary implementing rules thereto have not been introduced, the lawsand regulations on cross border merger and acquisition are not well coordinate and even conflict with eachother. The deficiencies of China’s the antitrust law system on cross-border merger and acquisition includes:the definition of relevant market is not clear; the notification and review system are not coordinate well,and even conflict each other, the antitrust power is divided into several parts by different anti-monopolybodies whose authorities are of comparative low level; the theory of the applicability of the antimonopolyLaw outside its extraterritorial jurisdiction is behind of time compare to the advanced countries andregions.This paper starts from the introduction of cross-border merger and acquisition and basic theory ofantitrust law. Then, combined with China’s actual situation, introduces the deficiencies in antitrust law system in China, experiences on related legislation and judicial practice in the developed countries, aimingto make suggestions on relevant market; antitrust notification and review system; executive authorities;applicability of the antimonopoly Law outside its extraterritorial jurisdiction.In addition to the introduction and conclusion, this paper is divided into five parts.The first part briefly summarized the concepts and types of cross-border mergers and acquisitions,each caused by a monopoly of reason and the current status quo of cross-border mergers and acquisitions inChina.The second part reviews China’s Antimonopoly Law, which laws and regulations constitute therelevant market definition, declaration of censorship, anti-monopoly law enforcement agencies and China’santi-monopoly law, the extraterritorial effects of the four aspects outlined.Part three deals with the flaws and deficiencies respectively of the four aspects: the relevant market;antitrust notification and review system; executive authorities; applicability of the antimonopoly Lawoutside its extraterritorial jurisdiction.Part four is about to selectively introduce the four aspects mentioned-above in the antitrust laws of theUnited States, European Union, Germany and Japan in the relevant market; antitrust notification andreview system; executive authorities; applicability of the antimonopoly Law outside its extraterritorialjurisdiction.Part five is purpose to make several piece of advices on China’s antitrust law system referring to therelevant market definition, the notification and review system, the setting of the anti-monopoly executiveauthorities, and the theory of the applicability of the antimonopoly Law outside its extraterritorialjurisdiction.