China Takes First Steps in Implementing New Anti-Monopoly Law by Revising Pre-Merger Notification Filing Thresholds & Dividing Enforcement Responsibility

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On August 1, 2008, China’s new Anti-Monopoly Law (AML) became effective. In the first step toward implementing the new AML, the State Council approved on August 4, 2008 a new set of regulations that revise China’s current pre-merger notification thresholds (Provisions on Declaration

of Concentration of Business Operators).

The new regulations implement changes that will simplify the analysis of whether a pre-merger notification is required for many parties. On the other hand, many companies with sales and operations in China are still likely to face uncertainty over whether a pre-merger notification will be required. Merging parties will therefore need to consult closely with antitrust counsel and possibly engage in pre-merger consultations with the Chinese authorities to resolve any uncertainty over

filing obligations.

Details also have started to emerge regarding how responsibilities for government enforcement of the AML will be apportioned. It appears that antitrust enforcement authority will be divided among several different agencies depending on whether the alleged anticompetitive activity or agreement involves price or non-price conduct or behavior. Since anticompetitive conspiracies or monopolistic

conduct can often have both price and non-price elements, there may be uncertainty over which agency has jurisdiction over the matter. It remains to be seen how each agency will enforce the new AML and how these potential jurisdictional conflicts will be worked out, if and when they arise.

See full legal update for more information.

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