Upcoming Mallesons seminarsAll firms with operations in China, including those with considerable market share, control “bottleneck” facilities, or with long-term agreements in place.
What do you need to do?“Audit” your operations in China to minimise the risk of regulatory investigations and fines, and, if conducting an acquisition, be prepared to negotiate merger clearance conditions, including divestments and limits on future expansion.
Martyn Huckerby (贺墨亭)
Partner
Sharon Wong (王思伦)
Senior Associate
Martyn Huckerby (贺墨亭)
Partner
T +86 21 2308 7628
Hong Kong
Hayden Flinn
(范凱敦)
Larry Kwok
(郭琳廣)
Beijing
John Shi
(史衛)
Sydney
Dave Poddar
Predictions of a Chinese antitrust/competition law revolution appear to be well founded following new incentives to encourage whistle-blowing, unique minimum fines of one per cent of turnover, a court system increasingly prepared to accept private actions and another conditional merger control decision.
In this review, we focus on the latest merger clearance decision by the Ministry of Commerce (MOFCOM) and new draft rules on monopoly agreements and abuse of dominance, published on 27 April, that look set to create a raft of regulatory investigations in China and will require firms to reassess their China regulatory strategy.
Part 1: MOFCOM approves Mitsubishi Rayon’s acquisition of Lucite subject to conditions - 24 April 2009
On 24 April 2009, one month after rejecting Coca-Cola’s China juice deal, MOFCOM announced its decision to clear Mitsubishi Rayon Co. Ltd.’s (Mitsubishi Rayon) acquisition of Lucite International Group Limited (Lucite). The clearance is subject to conditions placed on Mitsubishi Rayon.
Notably, the conditions include a requirement to “divest” production capacity upfront. While this is not the first time MOFCOM has cleared a transaction subject to conditions (please see our previous alert regarding InBev’s acquisition of Anheuser-Busch), it is the first time the conditions include divestiture of production capacity. The subject matter of the divestment is unusual in that it concerns production capacity over a five-year period, not actual assets.
Another notable condition is that the merged entity must seek approval from MOFCOM for any future expansion in investment capacity, whether by acquisitions or by investment in new plants. While the former is reminiscent of a similar condition in the InBev deal, the Mitsubishi Rayon deal is unusual in that MOFCOM’s approval is required even for investments in new plant capacity. Since investment in new plant capacity represent organic growth rather than acquisition of capacity from competitors, such investments are normally pro-competitive.
Background and merger review process
Mitsubishi Rayon is a leading manufacturer of monomers and polymers, based on its methyl methacrylate (MMA) and acrylonitrile (AN) complexes. Lucite is the world’s largest supplier of MMA, accounting for 24 per cent of the global acrylic monomer market. Mitsubishi Rayon and Lucite each have MMA plants in China.
On 11 November 2008, Lucite announced that it would be acquired by Mitsubishi Rayon. The parties sought merger clearance from MOFCOM on 22 December 2008. On 20 January 2009, MOFCOM commenced preliminary review of the acquisition. On 20 February 2009, MOFCOM decided to conduct a further review of the transaction, slating this for completion by 20 May 2009. Finally, on 24 April 2009, MOFCOM announced it had cleared the concentration, subject to conditions.
Competition concerns
MOFCOM consulted extensively with relevant industry associations, MMA manufacturers, polymethyl methacrylate acrylic (PMMA) moulding compounds producers and PMMA acrylic sheet manufacturers, as well as the parties to the transaction.
MOFCOM found that the merged entity would supply 64 per cent of the MMA market, which would give Mitsubishi Rayon a dominant market position (horizontal impacts). In particular, Mitsubishi Rayon’s market share would be significantly larger than those of the second and third largest suppliers in China, being Jilin Petrochemical and Heilongjiang Longxin Company, respectively.
Furthermore, as Mitsubishi Rayon had business activities in two markets downstream of MMA, MOFCOM found that the merged entity could use its dominance in MMA to restrict competition in those downstream markets (vertical impacts). In particular, MOFCOM was concerned that the merged entity would produce “blocking effects” on downstream competitors by using its dominant position in the upstream MMA market.
Conditions of clearance
MOFCOM invited Mitsubishi Rayon to propose restrictive conditions to address the anti-competitive effects identified by MOFCOM. Both parties were invited to comment on MOFCOM’s concerns and, in response, submitted an initial and then a revised remedies proposal for MOFCOM’s consideration. MOFCOM concluded that the proposed remedies were sufficient to alleviate any negative impact caused and approved the transaction.
MOFCOM imposed a variety of conditions on the concentration. The conditions are:
1. Partial divestiture (and threat of full divestiture): Within six months of completing the concentration, Lucite China must divest 50 per cent of its annual production capacity over five years to unaffiliated third party purchasers (partial divestiture of capacity). Under the terms of the divestiture, unaffiliated third party purchasers will be entitled to purchase MMA products produced by Lucite China for five years at production cost without any profit margin. The cost price is to be verified by an independent auditor. This arrangement in effect gives downstream rivals of Mitsubishi Rayon access to upstream MMA production at cost-based prices.
If the parties fail to divest within six months (plus any extension granted by MOFCOM), MOFCOM may appoint an independent trustee to sell 100 per cent equity of Lucite China to an independent third party (full divestiture of assets in China).
2. Lucite China to remain operationally independent until divestiture: From the close of the transaction to the divestiture (divestment period), Lucite China must remain operationally independent of Mitsubishi Rayon. The parties must not share any pricing, customer and other competitive information in relation to the China market. Lucite China and Mitsubishi Rayon must have separate management and board members during the divestment period. Any contravention of this condition may result in fines from RMB 250,000 to RMB 500,000.
3. Restrictions on expansion in China for five years: Unless MOFCOM grants its approval, the new merged entity must not expand its MMA monomer, PMMA polymer or cast sheet production capacity in China either by acquisition or establishing new plants. This condition is reminiscent of the InBev acquisition of Anheuser-Busch, which was cleared subject to restrictions on future acquisitions. Unlike the InBev transaction however, the restriction applies also to organic growth (via new plants), as well as to acquisitions of competitors. It is not clear what the rationale for restricting investments in new plant capacity may be, since any such investments would normally be regarded as pro-competitive.
Implications for businesses conducting mergers
Whereas the Coca-Cola deal concerned a foreign bid for a famous Chinese brand (see previous alert), the Mitsubishi Rayon acquisition of Lucite is a global merger between two foreign firms with operations in China. The key lessons from this deal include:
(a) Global mergers between firms with substantial operations in China are likely to require merger clearance from Chinese competition authorities
(b) Merger clearance may take up to four months from formal filing; consequently parties should allow plenty of time for merger clearance in China
(c) To secure merger clearance, it may be necessary to divest local assets in China. Having said that, partial divestiture of production capacity (rather than actual assets) for a specified period (e.g. five years) may be sufficient, and
(d) Where two parties to a transaction have operations in the same or related markets in China, they should anticipate any clearance decision being subject to restrictions requiring MOFCOM approval for future expansion.
Mitsubishi Rayon’s success suggests that negotiations with MOFCOM during the merger review process play a key role in getting a deal through, especially where MOFCOM has identified significant concerns. A comprehensive submission, coupled with well structured remedy proposals, may persuade MOFCOM to allow a concentration to proceed subject to restrictive conditions.
A concern for many is perhaps that the merging parties cannot easily determine whether a proposed remedy adequately addresses MOFCOM’s concerns. This uncertainty is heightened in part by the lack of transparency around the negotiation process. Neither the PRC Anti-Monopoly Law (AML) nor its implementation rules provide clear guidelines to assist. Given the nature of the exercise, parties should engage MOFCOM early on in the merger review process to allow ample time to attend to MOFCOM’s concerns.
Part 2: SAIC publishes draft implementation rules for consultation
In March and early April 2009, the State Administration for Industry and Commerce (SAIC) circulated draft rules to a small circle of AML professionals in China for preliminary comment. These included the following:
- Provisions on Prohibiting Monopoly Agreements: These draft rules set out which monopoly agreements are prohibited and SAIC’s authority over these activities (Draft Rule No. 1)
- Provisions on Prohibiting Abuse of Dominant Market Position: These draft rules explain what would be deemed as a “dominant market position”, what activities by undertakings with dominant market position are prohibited and SAIC’s authority over these activities (Draft Rule No. 2), and
- Rules on Procedures for Industry and Commerce Authorities to Investigate and Sanction Monopoly Agreements and Abuses of a Dominant Market Position: These rules set out the process that SAIC will follow when investigating and sanctioning abusive conduct by firms (Draft Rule No. 3).
On 27 April 2009, SAIC officially published amended Draft Rules No. 1 and No. 2 on its website to solicit public comment on or before 31 May 2009. SAIC has yet to officially publish Draft Rule No. 3 for public consultation. Below, we address some of the key issues arising from the three draft rules.
Monopoly agreements
What agreements are monopolistic? Are they prohibited per se?
Draft Rule No. 1 clarifies that a monopoly agreement may be written, oral or concluded by concerted acts or decisions. A monopoly agreement is not confined to express agreements; it includes “concerted conduct” pursuant to a tacit understanding between the parties. In determining whether parties have engaged in a “concerted act”, SAIC will consider the rationale for the action and the market structure. Firms that closely mimic each other - for example, in raising or reducing prices - may well be found to have engaged in concerted acts even if the decision to raise or reduce prices is done independently of each other, without any communication between the parties.
The SAIC draft rules confirm that prohibited monopoly agreements include:
1. Horizontal agreements (between competitors) that restrict volume on production or sales, divide a market for supplying or acquiring commodities, restrict technological development and contain boycotts, including a joint or coordinated refusal to sell to, or acquire from, another undertaking
2. Bid rigging (among rivals) including collusion between rival bidders on who among them will be the winning bidder in a tender or bidding process
3. Vertical arrangements (between buyers and suppliers) whereby a firm, without fair reason, requires its counterparties to trade exclusively with it or restricts the markets in which a counterparty may operate
4. Bid rigging (between bidder and counterparty) where the counterparty inviting bids provides some bidders prior or privileged access to information that is not available to other bidders, and
5. Other agreements yet to be determined by SAIC (suggesting that firms should continue monitoring future SAIC practices and developments that may impact the validity of their contractual arrangements).
The scope of a monopoly agreement is therefore very broad and potentially covers “parallel conduct”, possibly including conduct engaged by parties acting unilaterally. However, monopoly agreements on price-related terms are expressly excluded from the draft SAIC rules. This is not because price-fixing is not a monopoly activity. Rather, it is because price-related conduct falls outside the jurisdiction of the SAIC. The National Development and Reform Commission (“NDRC”) is the relevant enforcement authority for price-related matters under the AML.
It is not clear to what extent the mentioned monopoly agreements are prohibited outright (per se), regardless of whether the monopoly agreement can be shown to actually eliminate or restrict competition.
However, certain monopoly agreements may be exempted and these include agreements that develop new products or standards, improve technology and quality of products, improve operational efficiency or competitiveness of small and medium sized undertakings or protect the public interest. To qualify for the exemption, the firm must prove that the agreement will not substantially restrict competition and that consumers will benefit from the agreement (although this requirement does not apply to the exemption concerning the protection of legitimate interests in international trade and foreign economic cooperation).
What penalties may SAIC impose?
SAIC may impose administrative penalties that range from one to ten per cent of the turnover of the parties to a monopoly agreement. Draft Rule No. 1 confirms that where SAIC finds that a firm has entered into a monopoly agreement it must impose a fine of at least one per cent of turnover. While SAIC is yet to produce fining guidelines, it is likely that a firm’s worldwide turnover across all markets could be taken into account in determining the quantum of the fine to be imposed. Parties who may be dissatisfied with penalties imposed may initiate administrative review or litigation in the courts.
Does SAIC have a “leniency policy”?
SAIC may, at its discretion, reduce administrative penalties imposed on a party (informant) if that informant provides “important evidence” about the monopoly agreement to which it is a party (as long as that party is not the “ringleader”). If the informant is the first person to report the monopoly agreement, SAIC may grant the informant full immunity from any penalty.
SAIC has also developed a “sliding scale” for discounting administrative penalties based on the informant’s position in time relative to other informants:
[Table 1: Discount on administrative penalty for being an early informant]
It is hoped that the final version of Draft Rule No. 1 will contain additional details regarding the practical application of the leniency policy. For example, nothing in the SAIC rules enables a prospective informant to anonymously negotiate an agreed outcome on the level of administrative penalties based on a broad description of the evidence that the informant claims to possess.
Abuse of dominant market position
What is a “dominant market position”?
Under the AML, a party has a dominant market position if it is able to:
- control the price, volume or other factors that substantially influence market transactions, or
- restrict new firms from entering into market within a reasonable time or the cost of entry increases (together, referred to as “Indicative Factors”).
If a firm accounts for at least 50 per cent of the market, 66.7 per cent of the market coupled with another firm or 75 per cent of the market together with two other firms, the firm is presumed to have a dominant market position. Importantly, Draft Rule No. 2 confirms that these presumptions may be rebutted if the parties present sufficient evidence to show that new entry is very easy, that there is efficient competition between the firms said to be in a dominant market position or that the firm does not display any of the Indicative Factors.
To assess whether a firm has a dominant market position, SAIC will consider factors including the firm’s market share, competition in the market, ease of entry into the market, the firm’s capacity to control sales and purchase in downstream and upstream markets, respectively, and the extent to which others rely on the firm.
What is an abuse of a dominant market position?
Draft Rule No. 2 notes that dominant parties must not abuse their market position by engaging in prohibited activities “without fair reason”, which includes refusing to transact with parties, exclusively dealing with select counterparts, tying products, imposing irrelevant terms, discriminating between counterparties and impeding the establishment of normal commercial relationships among other firms. The reference to “without fair reason” indicates that the listed activities are not prohibited per se and that a firm with a dominant market position may engage in the listed activities should a legitimate reason exist. That said, “fair reason” is an undefined term and remains subject to debate.
Do dominant undertakings have to provide access to essential facilities?
A late addition to Draft Rule No. 2 is a rule requiring dominant undertakings to provide access to a network or key infrastructure owned by the undertaking. The dominant undertaking may not refuse to give other undertakings access to the network or key infrastructure at reasonable terms. This development is significant in that it suggests that access to essential facilities is clearly a part of the AML. That said, important questions remain outstanding, including what “key infrastructure” means, and what term of access would be considered reasonable.
SAIC’s enforcement procedures and powers over monopoly activities
SAIC’s procedures for investigating and sanctioning monopoly agreements and abuses of a dominant market position (collectively “monopoly activities”) are summarised in Figure 2 below. The SAIC rules seem to confer significant responsibility for enforcing the AML on the Industry and Commerce Authorities (ICA) at the provincial level (or below). The ICAs will carry out their work under SAIC’s supervision.
[Figure 2: SAIC’s procedures for investigating monopoly activities]
As with monopoly agreements, SAIC may impose administrative penalties that range from one to ten per cent of the turnover of a firm that has been found to have abused its dominant market position.
Undertakings to settle an investigation
Firms that are the subject of an investigation may apply for the investigation to be terminated if the ICA accepts an appropriate undertaking from the firm. The application must include a statement of the “violation facts” and effects, proposed measures for eliminating the effects and a detailed schedule (including timeframes) for fulfilling the commitments given by the firm.
The ICA may accept the application by making a written decision or monitor compliance with the undertaking. An investigation that is terminated may recommence if commitments are not fulfilled, information provided is incomplete or incorrect or there is a material change to the basis for terminating the investigation.
Implications for businesses operating in China
While AML-related developments to date have focused around private actions (which are increasingly being accepted by the courts in China) and MOFCOM’s administration of the merger control regime under the AML, SAIC has now sent a clear message that it is preparing to take action against firms that are party to abusive agreements and those abusing their dominant market position. In its draft implementation rules, SAIC has laid the groundwork for a leniency policy that is likely to encourage the reporting of anticompetitive agreements, and has provided further details regarding its approach to the AML provisions relating to abuse of dominant market position. Firms operating in China should now prepare themselves for an increased level of regulatory activity and the potential for dawn raids by the investigators.
There are a number of steps that firms operating in China should now be taking to avoid the potential for fines of between one and ten per cent of turnover being imposed. In particular, firms should carefully review any long-term arrangements that they may have in place to ensure that none of those arrangements are monopoly agreements. Firms should also be especially careful about any discussions they may hold with rivals or prospective rivals, including at industry conferences.
Firms operating in highly concentrated markets or firms with substantial market shares may be at risk of being found to have a dominant market position. Any complaints from customers, suppliers or rivals should be carefully reviewed to ensure there is nothing that would lead to an ICA investigation. Firms should also prepare evidence to rebut the presumption of dominance in highly concentrated markets where they may in fact not be able to act free of competitive constraints.
On the other hand, firms dealing with incumbent undertakings possessing a dominant market position may have remedies available under the AML to address any abuses of dominance by those undertakings. In fact we understand that SAIC is currently preparing to commence two investigations in this area, one against a multi-national firm operating in China and one in relation to the conduct of Chinese state-owned enterprises.
The draft rules are likely to be amended before being finalised but are unlikely to be substantially revised. For example, the rules on monopoly agreements may be further amended to remove any suggestion that an industry association infringes the AML when its members agree to the minutes of a meeting.
Disclaimer
The views set out in this publication are based on our experience as international counsel representing clients in their business activities in China. As is the case for all international law firms licensed in China, we are authorised to provide information concerning the effect of the Chinese legal environment. However we are not admitted to practice Chinese law and so are unable to issue opinions on matters of Chinese law.
This publication is only a general outline. It is not legal advice. You should seek professional advice before taking any action based on its contents.