The Mechanism Protecting The Confidentiality Of Information Provided During The Merger Review Process In The U.S.

A history of over100years from its entering into force, U.S. antitrust laws have builtup a relatively mature and advanced antitrust legal system, which contain themechanism protecting the confidentiality of information provided during mergerreview process as one important part of it. Though with a five-year history only, theChinese Anti-monopoly Law has been paying attention to the confidentiality ofinformation provided to the merger review agencies ever since the making of the law.Compared to a sophisticated and comprehensive one of the U.S., the legal system ofChina on this part is far from perfect, with merely abstract rules in principle.This article is based on laws, rules, guides, and models and any other documents thatthe antitrust agencies rely on when they deal with merger cases. The author collected,analyzed and studied an abundant of documents and came to above conclusion aftercomparing to the rules of China.This article consists of seven sections. The preamble defines and introduces brieflyabout the information confidentiality protective mechanism of its framework,meaning and the several questions that this thesis tries to answer. The first sectiondescribes the legal framework of the mechanism, namely the HSR Act, FTC Act andFOIA Act, followed by detailed various protective measures and mechanism forinformation provided voluntarily and compulsorily. The second section discusses legitimate and reasonable ways to disclose information provided by merging parties tostate attorney general, the Congress and its commissions, third parties involved in thereview process and foreign antitrust law enforcement authorities. The third sectiondiscusses subsequent use of information and legal responsibility for antitrustauthorities to return such information. The fourth section discusses the mergingparties’ reasonable use of review process to protect company information, includingduring the premerger filing, second request and dispute resolution on non-compliance,among which Quick Look and Phased Production are two ways that are worthattention. The fifth section merging parties’ waiver of confidentiality of informationsubmitted. The conclusion part first introduces China’s basic legal framework in thisarea, and its gap with U.S.’s system, thus pointing out its direction of development.The author believes that the advanced U.S. system, though not perfect, is worth ourlearning. The narrower the gap is between the legal systems of the two countries, thebetter protected the rights and interests of enterprises doing business in both countriesand the closer, more effective and more efficient the cooperation is between theagencies for the protection of efficiency of the market.