National Development and Reform Commission

It's a case of buyer beware if moving into the mainland

For any transaction there must be no question that what is bought is what was actually bargained for, warn partners at Norton Rose

PUBLISHED : Wednesday, 31 October, 2012, 12:00am
UPDATED : Wednesday, 31 October, 2012, 4:10am

How well do you know and understand the target company? It is important at the outset to understand what it is that you are buying and to ensure that you are not unwittingly buying more or less than you had bargained for. Foreign investors will generally choose to work with an adviser to conduct a legal review, or due diligence, on the target company. Due diligence covers many facets of a target company and its business but, at a minimum, should seek to verify that the company has been duly established, holds the licences necessary to undertake its business activities, owns or leases the assets it needs to carry on its business, has appropriate contracts in place with key trading partners and its employees and identify any areas of particular concern (e.g., is the company involved in any disputes that could result in it having to pay damages after it has been acquired?).

In tandem with the legal due diligence, it would be prudent to carry out a review of the financial and tax aspects of the company and other, more specialist, forms of review (such as an environmental audit/review) may be warranted depending on the sector in which the target company operates.

The acquisition will need to be documented in an equity transfer agreement. This will be an opportunity to gain additional contractual protection and to seek warranties and indemnities (especially for any potential liabilities discovered during due diligence for which the purchaser is unwilling to take the risk).

Are foreign investors welcome? The Ministry of Commerce will need to approve the transaction and the consideration for the transaction. Depending on the sector and the location of the target company, additional approvals may also be required from a specific industry regulator and the National Development and Reform Commission (although in many localities NDRC approval is handled in a "one-stop shop" as part of the ministry's approval).

The Anti-monopoly Law of 2007 (the AML), which came into effect in August 2008, established a broad merger control regime in the mainland. The ministry's Anti-monopoly Bureau is responsible for the merger control review and clearance.

Transactions which qualify as "concentrations" as defined in the AML and meet the turnover thresholds set out in the State Council Regulation of 2008 on the Notification Thresholds for Proposed Concentrations of Business Concentrations, are subject to a mandatory pre-merger notification procedure before the ministry and cannot be implemented pending review.

Foreign investors are well-advised to consider if a notification is required at any early stage in any transaction.

The ministry has 30 calendar days to complete the first phase review, at the end of which it will either clear the transaction or, if it still has concerns about its potential anti-competitive effects, proceed to a 90-calendar day second phase review, which can be extended by another 60 calendar days.

If it fails to make a decision within these time limits, the transaction is deemed cleared and the parties can complete the transaction. In practice, the timelines tend to be extended significantly.

The ministry has a strict policy as regards the information required for notification and the 30-calendar day first phase review does not start until ministry officials are satisfied that the notification documents are complete. Parties are therefore strongly encouraged to file an advance draft notification before making a formal filing and to engage in pre-filing talks.

The AML provides that a national security review will be conducted (in addition to a competition review) if acquisitions of domestic enterprises by foreign investors or concentrations of undertakings in any other forms may affect the national security of China.

The national security review regime runs in parallel to the competition review regime but may only apply to foreign acquisitions of domestic firms in certain sensitive industries.

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