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Analytical Paper on MOFCOM’s Evolving Approach to Remedies
ABA CLE Paper
Year published: 2016
"In the nine years since MOFCOM started reviewing transactions under the Anti-Monopoly Law of China ('AML'), it has intervened in approximately 30 cases out of over 1,600 filings. In 2017, MOFCOM imposed remedies in seven transactions, compared with only two in 2016.

Based on reviews of these cases and comparing MOFCOM’s remedies to US and EU decisions on the same cases (where relevant), it seems that MOFCOM continues to be willing to diverge from the decisions of the other regulators. MOFCOM has also returned to more controversial remedies such as hold separates.

Recent cases have highlighted the fact that the outcome of MOFCOM investigations can sometimes be unpredictable and uncertain, even where market shares may appear to be relatively low (e.g. Siliconware Precision Industries/Advanced Semiconductor Engineering, cleared in November 2017 subject to a commitment by the parties to hold separate their overlapping businesses for two years after completion, which involved combined market shares of less than 30% in China). In some global mergers, MOFCOM has intervened by imposing conditions even when a transaction has already received unconditional clearances in other jurisdictions, or by going beyond the conditions that have been imposed in those other jurisdictions. For example, Nokia/Alcatel-Lucent was approved unconditionally in the US and the EU but subject to behavioural remedies in China in October 2015. Recently, the Dow/DuPont merger was approved in China in May 2017 with divestment commitments similar to those imposed in Europe and the US, but also subject to additional behavioural remedies.

In this article, we explore MOFCOM’s approach to behavioural and structural remedies, offering a comparison with the position taken by the European Commission ('EC') and US agencies. We also consider briefly how industrial policy may be impacting MOFCOM’s approach to remedies."
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