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M & A analysis of the main legal issues - antitrust


merger of the main legal issues - antitrust issues



Author: Tang Qinglin, Beijing lawyer,[link widoczny dla zalogowanych], People's University Master of Law, specializes in mergers and acquisitions lawyer and theoretical research in this field are interested in the business, has written

Contact: [link widoczny dla zalogowanych]; 13366687472.



a monopoly of the concept and forms of

economics monopoly (Monopoly) refers to the small number of enterprises with strong economic strength of the production and market control, and in certain market areas of substantially restricting competition from a market state. Can be seen from the monopoly of economics focuses on the definition of monopolies. Law on no uniform definition of Monopoly. Such as the U.S. antitrust laws is characterized antitrust, U.S. antitrust laws, so called This is because the concepts are the monopoly of countries according to their national conditions and characteristics of the formation of the market, with strong ethnic characteristics. In general,[link widoczny dla zalogowanych], the law on monopoly (Monopoly) is the subject of individual or collective market violation of mandatory provisions of law, in particular the abuse of market dominant position to eliminate or restrict competition and harm the interests of consumers, harm the public interest behavior. Shows the concept of law focuses on the regulation of monopoly monopoly.

monopoly law generally include the following forms:

1. Horizontal integration horizontal integration

mainly refers to cartels, the law of independent businesses for a common purpose, mutual restriction of competition in the market to reach some kind of agreement or coordination, thereby limiting the enterprises in this aspects of autonomy. Developed market economies, the cartel generally divided into two categories, one for cartels and the cartels by selling the market; another cartel is applicable to . Germany cartels and other nine categories, and according to their degree of influence into the registration of cartels, may dismiss the cartels and cartels to be approved.

2. Longitudinal vertical integration refers to the United

between enterprises of different economic stages of an agreement entered into, mainly for fixing the resale price, the monopoly after the integration of the user, an exclusive sales agreement, intellectual property agreements and non-price vertical constraints. Which limit the resale price should be applied

3. Abuse of dominant market position

enterprises through legitimate competition or the law legally gained the ascendancy, the law generally will not interfere. However,[link widoczny dla zalogowanych], if the dominant firm has a monopoly abusing its dominant position, the implementation of restriction of competition, exclude competitors, harm the interests of consumers, was prohibited by antitrust laws.

4.

Business combination business combination is achieved through the acquisition of an enterprise the purpose of monopolizing the market. Modern anti-monopoly law in considering whether the merger constitutes a monopoly, not only to consider the combined company in the market share and the ease of market entry, but also examine the combined impact of business-to-market price, that is more specific in-depth market structure of study and the combined effect of market behavior.

5. Administrative monopoly

administrative monopoly is the executive authority or its authorized organizations, abuse of administrative power to restrict competition. Mainly as a regional administrative monopoly, compulsory administrative transactions, the executive branch interference in business operations, administrative abuse of a dominant firm behavior. Administrative monopoly will be the focus of future antitrust laws the object of regulation.

Second, our M & A antitrust issues raised by

our country is not yet official Although China's Made in China from 1994 to develop There are two main reasons: first, because China had a planned economy, in economic life is the absolute dominance of state-owned enterprises. From a planned economy in the process of transition to a market economy, although private enterprises and foreign-funded enterprises continue to emerge, but many industries are still state-owned enterprises in monopolistic; Second, because of administrative monopoly in China is very obvious. Administrative monopoly and the transformation of government functions in China closely. To solve this problem, must be subject to the reform of the process of transformation of government functions.

recent years,[link widoczny dla zalogowanych], surging mergers and acquisitions. In the wave of mergers and acquisitions, many companies joined forces through the jungle to create a specific industry or business in the carrier. The aircraft carrier Enterprise in a specific industry through its monopoly position to grab the high monopoly profits. Some old state-owned enterprises, with its historical strengths and policy support, through the acquisition of other companies continue to expand, to become the industry giant. In addition, some foreign companies, especially multinational companies with strong capital and technology strength and a higher management level, through the acquisition of domestic enterprises, China has achieved quickly in a large market share, some companies actually have reached the monopoly. For the above, the After the 2003 reform of the State Council,[link widoczny dla zalogowanych], Ministry of Commerce, responsible for Law of the NPC Standing Committee has been included in the legislative plan of the Tenth National People's Congress.

in the official Board on March 7, 2003 jointly issued the The most prominent feature is the requirement for foreign mergers and acquisitions created a relatively good anti-monopoly review mechanism. Details are as follows:

1. Acceptance of foreign investors and domestic M & A review of alleged monopoly of the authorities to declare

under former MOFTEC) and the State Administration for Industry and reporting. In addition, the Ministry of Commerce and the State Administration for Industry is a joint review authority, who co-chaired the review process and work together to review the decision.

2. Domestic M & A suspected foreign investors need to declare a statutory monopoly situation

(1) party to the takeover in the Chinese market turnover exceeds RMB1.5 billion;

(2) a During the year, the domestic relevant industries enterprises amounted to more than 10;

(3) party to the takeover market share in China has reached twenty percent;

(4 ) takeover leads a party percent market share in China, xxv.

the case of the merging party, including affiliates of foreign investors.

3. Monopoly of foreign investors in domestic M & A suspected case discretion to declare

case does not exceed the statutory requirements of the conditions, but there should be competition between the domestic enterprise, relevant functional department or industrial association requests the Ministry of Commerce (formerly MOFTEC) Ministry or the State Administration for Industry and acquisitions involving foreign investors that the huge market share, or there are other serious impact on market competition or the people's livelihood and national economic security and other important factors, foreign investors can also make a report required .

4. Acquisition of domestic enterprises with foreign investors, the legal situation and the discretion of the alleged monopoly situation, the Ministry of Commerce (former MOFTEC) and the State Administration for Industry and that may lead to excessive concentration, impair fair competition or harm the interests of consumers, and shall received all the documents required to be submitted within 90 days, convened jointly or separately by negotiation departments, institutions, enterprises and other interested parties and hold a hearing, and shall make a decision to approve or disapprove.

5. Overseas M & A suspected foreign investors need to declare a statutory monopoly situation

(1) outside the party to the acquisition in China with assets of more than 30 billion yuan;

(2) outside party to the takeover business in the Chinese market for 15 million yuan or more;

(3) outside the party to the acquisition and its associated enterprises in China has reached twenty percent market share;

(4) Due to the overseas mergers and acquisitions, and its associated offshore companies party to the acquisition market share in China twenty-five%;

(5) because the overseas acquisition , outside the party to the acquisition, directly or indirectly, shares of foreign investment in relevant domestic industries more than 15 enterprises.

foreign investors overseas takeover of one of these cases, the acquiring party shall be announcing the takeover proposal or report before the competent authority in the country, the Ministry of Commerce (former MOFTEC) and the National Business Administration submit the takeover proposal. Ministry of Commerce (former MOFTEC) and the State Administration for Industry and shall examine whether the domestic market caused by excessive concentration, impair fair competition within the territory, or damage the domestic consumption

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