High-Profile Merger Filings in 2019: An Analysis of Conditionally Approved Concentrations

This article focuses on the five conditional approvals issued by the Chinese antitrust authority in 2019. There five such cases, i.e., KLA-Tencor/Orbotech, Cargotec/TTS, II-VI/Finisar, Garden Bio/DSM and Novelis/Aleris. This article analyses these cases from both procedural and substantial perspectives. The paper concludes that, in terms of procedure, one of the most significant features is the long and complex review process. In particular, it is important to assess whether a case in fact qualifies for the simplified procedure before filing. From a substantive perspective, the authority tended to adopt tailor-made behavioural remedies. Finally, the paper remarks on the latest legislative developments in merger control in China.

By John Yong Ren, Wesley Zhining Wang & Martha Shu Wen¹

I. OVERVIEW

For high-profile mergers which may cause anti-competitive effects, according to Article 29 of the Anti-Monopoly Law of the People’s Republic of China (“AML”),² “restrictive conditions” (or remedies) can be imposed by the competition authority to reduce potential anti-competitive effects.³ Such decisions are typically called “conditional approvals.”

According to Article 3 of the Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation) (the “Remedy Provisions”), three types of remedies can be imposed to address potential adverse impacts on competition: (i) structural remedies, i