Almost ten months after its last published decision, the Ministry of Commerce (MOFCOM) has recently issued its sixth conditional clearance decision since the enactment of the Anti-Monopoly Law (AML) in 2008. On 13 August 2010, MOFCOM approved the proposed US$28bn acquisition of Alcon by pharmaceutical giant Novartis, subject to conditions. It is the first time that MOFCOM has imposed conditions to address 'coordinated effects' arising from a merger transaction.
MOFCOM's busy two years |
According to a source close to MOFCOM, about 150 notifications have been accepted by the regulator since the Anti-Monopoly Law became effective. 120 of the cases have been dealt with, and only one was blocked while six were granted approval subject to conditions. |
Prior to Novartis/Alcon, Ning and her team also played a key role in obtaining MOFCOM's conditional clearance for Pfizer's US$68bn acquisition of Wyeth Pharmaceuticals in 2009 and MOFCOM's unconditional clearance for Mitsubishi Chemistry's US$2.1bn acquisition of Mitsubishi Rayon in 2010. According to an anonymous source, King & Wood has completed more than 30 merger filings with MOFCOM over the past two years.
During the past two years of her practice, Ning has noticed an increased level of clarity and predictability of MOFCOM's merger control procedures. "The merger filing regime has improved and will continue to improve. We expect more foreign companies to file a merger notification with MOFCOM for their transactions in and outside China. The number of filings for mergers between domestic companies will grow too, but in a more gradual way," said Ning.
Ning stresses the importance of lawyers and their clients having "sophisticated and informed" discussions with MOFCOM to understand the way the regulator is working and the issues that it is concerned with.
Currently, the firm has an 11-strong team focusing exclusively on merger control filings and antitrust compliance. Liu Cheng, formerly a lead lawyer at DLA Piper's international trade and competition practice in Beijing, is the latest addition to the team. ALB
Transaction
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Result
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Remedies
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Date of decision
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InBev’s US$52bn acquisition of Anheuser-Busch
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conditional approval
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InBev-AB to obtain its consent before implementing certain transactions in China
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18 November 2008
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Coca-Cola’s proposed US$2.4bn acquisition of Huiyuan
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Blocked
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N/A
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18 March 2009
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Mitsubishi Rayon’s US$1.6bn acquisition of Lucite International Group
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conditional approval
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Parties to divest a portion of their production capacity
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24 April 2009
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General Motors’ acquisition of Delphi
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conditional approval
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GM to abstain from a variety of discriminatory or exclusionary practices in dealings with other carmakers and facilitate transitions to alternate auto parts suppliers
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28 September 2009
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Pfizer’s US$68bn acquisition of Wyeth
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conditional approval
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Divestiture of Pfizer’s swine mycoplasma pneumonia vaccine business in China
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29 September 2009
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Panasonic’s US$9.4bn acquisition of Sanyo
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conditional approval
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Divestiture of entire business lines in the battery sector, including facilities outside China, and restriction of Panasonic’s exercise of its voting rights in a joint venture with Toyota
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30 October 2009
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Novartis’ US$28bn acquisition of Alcon
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conditional approval
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Novartis is barred from selling infectoflam or similar opthalmological anti-infective products in China in the next five years, and is to terminate the supply arrangements with Hydron within the next 12 months
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13 August 2010
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Related stories:
- Former DLA Piper antitrust lawyer joins King & Wood as counsel (24 June 2010)
- Zhong Lun obtains landmark clearance for Panasonic-Sanyo merger (9 Novermber 2009)
- Two global M&A deals get nod from MOFCOM (1 October 2009)