This Article examines the remedy imposed on the conditional approvals in China’s merger review in 2022. The five cases of conditional approvals in 2022 are summarised from both procedural and substantive perspectives with the behavioural remedy of “continue to supply under FRAND principles” highlighted. This article studies the prevalence of the remedy of “continue to supply under FRAND principles” in the recent years and analyses SAMR’s reasoning behind. The prevalence of “continue to supply under FRAND principles” can resulted from the need to provide extra protection for contract performance and may also serve as an option to address both competition concerns and industry concerns in light of the AML’s multi-dimensional goals. In addition, the reference of such remedy can also provide both the transaction parties and SAMR the foreseeability and predictability to a large extent. As such, we believe such remedy is likely to continue to be frequently imposed in the future.

By John Yong REN, Christine Zhang & Schiffer SHI[1]

 

I. INTRODUCTION

2022 was the 14th anniversary since China’s Anti-Monopoly Law (“AML”) came into force in 2008. 2022 witnessed the first amendment[2] made to the AML that not only reflected Chinese competition authority’s experience accumulated during the past decade’s enforcement, but also reflected the evolving expectations attached to the AML.

Examples for the former include the introduction of “stop the clock

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