Research On Anti-Monopoly Legal Issues Of Foreign Merger & Acquisitions

With China's entrance into the WTO, Chinese economy is gradually integrating with global economy, and the foreign Merger and Acquisitions (Abbreviated as M&As) is playing an important role in global economy. Foreign M&As produces good results, but at the same time, it brings negative effects, of which monopoly is the most serious. The legal system of foreign investment is not enough to control and regulate the monopoly existing in the foreign M&As in China, which will bring harm to the competitive order, and will also make foreign investors lose the confidence. So it is necessary for us to study anti-monopoly law deeply, which will bring significant effects both in the improvement of the legal system of foreign investment and in strengthening foreign investors' confidence, and will also affect the utility of the foreign investment.In addition to the preface and final remarks, this paper is composed of three chapters.Chapter One is about Anti-monopoly issues of foreign M&As. Thinking of the first banned Anti-monopoly Case, Coca-Cola acquisition of Huiyuan, such a consensual case, is prohibited by the Ministry of Commerce. By analyzing the case, Anti-monopoly issues raise. The point is focused on: Why the case benefit both sides was prohibited by the Ministry of Commerce? In the case where the two companies are not registered in China, whether Chinese Ministry of Commerce has jurisdiction over it? Problems of the case under review include how to define the business concentration problems, how to define the relevant market, and whether the case is affected by the other factors? With the answer to the questions, the article further details the basic concepts of foreign M&As, and the legal nature and the development trend of China's foreign acquisitions. Since the 90s of the 20th century, China's foreign M&As can be generally described as three legislative stages in which are exploration, development, and the early framework, showing the spiral trend of the door to foreign M&As as open, closed, re-open. Foreign M&A is a double-edged sword. It produced some adverse effects in the promotion of domestic industries and domestic enterprises to achieve scale economies, among which the most serious one is that it is possible to course monopolization. In order to effectively control anti-monopoly of foreign M&As and to safeguard fair competition order and social interests, Chinese government should regulate foreign M&As by anti-monopoly law.Chapter Two introduces the United States and European Union antitrust review of foreign M&As standards. This part compares the United States with European Union review standards on entity and procedure. The United States and European Union have strict legal control of M&As. The United States is the earliest country to establish anti-monopoly law, its anti-monopoly law combines administration interference to legal interference, which obtain outstanding legal effect. European Union's legal system is dominated by administrative regulations and adjust on foreign M&As by the same legal system. This section introduces the United States and the European Union for foreign M&As review standard anti-trust review for reference to China's anti-monopoly law. Then in this chapter the writer further describes the United States antitrust laws regulate foreign M&As entity review standard'substantial lessening of competition'and European Union standard'seriously undermine effective competition'. Meanwhile, introduces the relevant market, market share, market concentration and other comprehensive review of standards in the United States and European Union anti-monopoly law. Lastly, introduces procedure review standard on reporting standards, review procedures and hearing procedures in the United States and European Union anti-monopoly law. Study and learn foreign advanced legislative experience will give us anti-monopoly of M&As legislation some advices. This will help us to face the wave of M&As.Chapter Three introduces Chinese practice and improvement on anti-monopoly of Foreign M&As. The problems in the M&As legislation on anti-monopoly regulations are: firstly, in the regulation lack of specific performance standards, the extraterritorial application of anti-monopoly regulation is unreasonable, anti-monopoly enforcement agencies setting is unreasonable. Based on the previous analysis, the author presents improvement suggestions on anti-monopoly legislation in China. Chinese anti-monopoly law is a comprehensive law related to economic, legal and other factors. Its implementation needs professional knowledge and skills to perform. The law must provide specific responsibilities of law enforcement and procedures. This ensures that in the process of the market running the market can receive most timely and accurate protection. In the review of reporting procedures, there is no clear evidence content for enterprise to provide, which make enterprises do not know how to gather evidence in practice. This defect led to the acquisition costs'increase. Standard fuzzy also resulted in power control difficulties, and loopholes in the law being used hinder the useful acquisition. Compared with the domestic enforcement, the extraterritorial application of anti-monopoly law is a more complex issue. Because, it involving not only economic and legal issues, but also the international comity and selection or creation of cooperation and competition agencies. China should follow the guidance of the Article 2 in anti-monopoly law, refine the details in extraterritorial application of antitrust rules to provide protection for effective competition in the domestic market and the legitimate rights and interests of consumers.In the conclusion part of the article, we know that we should refine the legislation. We should also follow the general principles of antitrust law system .At the same time, we should follow the rules of market economy and fair and effective competition rules. Last but not least, we should combine forestall all measures with the principle of national treatment and maintain the national economic security to implement. Do our best to deal with complex problems arising in various to achieve the legislative goals of the promotion of fair and effective competition and maintenance national economic security.