The Dilemma And Solution Of The Anti-monopoly Review Of The Merger And Acquisition With VIE Mode

If a merger or acquisition transaction meets the antitrust examination standards,it shall be declared in accordance with the law,and the antitrust regulatory authority shall make a decision on whether to permit the transaction after the antitrust examination or not.Each party needs to declare transactions by their business and legal compliance commitment,and the validity of the VIE mode itself has been relatively fuzzy.PRC law does not take VIE mode as an excuse for the exemption of antitrust filing obligation.The antitrust bureau concerns its decision is equal to giving endorsement for the VIE mode in a gray area.Therefore,merger and acquisition transactions related to VIE mode has been rejected to be reviewed by antitrust bureau for a long time.In a word,considering the legitimacy of the VIE mode,the antitrust regulator dealt negatively with the antitrust review of VIEs’ application,so the industry gradually formed a trend of not reporting,though they have already reached the line.In order to circumvent relevant foreign investment within the territory of regulatory requirements and to get listed abroad,VIE mode,as a kind of financing needs of the special structure,its concealment and instability brought special monopoly risk.Enterprise with the help of the VIE moderetain a high speed of process of expanding,the market competition inevitably brought security problems.However,when it comes to antitrust review,there has never been an unconditional approval of concentration before the case Ming Cha Zhe Gang.This case is the first time for the antitrust law enforcement agency to publicly accept and unconditionally approve the transaction involving a concentrated party with VIE mode,which proves that the antitrust law enforcement agency has begun to explore the VIE dilemma,but it does not mean that the VIE mode related transactions will generally receive normal acceptance and review.Up to now,we still cannot determine the impact of the VIE mode on antitrust review.Meanwhile,China lacks a targeted regulatory system for the VIE mode.These problems need to be solved urgently.When the Antitrust dilemma of the VIE structure is resolved,the VIE enterprises that have reached the declaration standard in the past but failed to declare should be supplemented with the declaration.In the face of the special monopoly risk of the VIE mode,regulators should properly deal with it,clarify the obligation of the antitrust review of the VIE mode,emphasize clearer information disclosure,and keep the review process transparent,which is particularly important for the market environment of fair competition.This paper,through analysis,clarizes the obligation of antitrust filing under the VIE mode,focuses on the regulation of monopolistic behavior of enterprises under the VIE mode,discusses how law enforcement agencies should consider the role of the VIE mode in the transactions involving the VIE mode,and tries to find a balance between maintaining the security of capital market and the freedom of transaction of market subjects.Through the introduction of Ming Cha Zhe Gang,this paper explores whether the VIE mode will affect the results of antitrust review,gives suggestions on solving the dilemma of the antitrust review under the VIE mode,provides acceptable measures for the improvement of the antitrust review involving the VIE mode related transactions,and argues that the Antitrust Law should be equally applied to the case of concentration of operators of the VIE enterprises.This paper is divided into four chapters:The first part of this paper mainly discusses the concept and birth of VIE mode.In addition to the traditional analysis of the VIE mode,this paper will also interpret the VIE mode from the perspective of legal value.The birth of VIE mode will be deeply analyzed from the perspective of legal value as well.Secondly,the VIE mode antitrust review,which is rarely discussed,will be introduced through a symbolic case called Ming Cha Zhe Gang.The second part of the paper mainly discusses the dilemma of the VIE mode antitrust review.Explain what kind of special monopoly risk the VIE mode brings.Combined with the practice,this paper illustrates the problems of negative enforcement,lack of transparency in enforcement and unclear role of the VIE mode when the antitrust regulator deals with the VIE mode related filings.The third part of the paper mainly discusses the antitrust regulation in the US and Europe,from several perspectives such as antitrust scrutiny and reporting system.According to the core spiritof Antitrust Law,how to perfect the VIE mode for its characteristic.Give comments on the essence of adjustable mergers and acquisitions antitrust review standard,while maintaining the fair competition and the freedom of M&A transactions at the same time.The fourth part of the paper mainly discusses the improvement of ourantitrust review system under the VIE mode.After clarifying the antitrust dilemma over the VIE mode,we can seek ways to break through the dilemma.On the one hand,we affirm that the VIE mode plays a huge role in promoting the growth of Chinese enterprises.On the other hand,we should face up to the risk of concentration of operators.The administrators should not ignore the safety of market competition because of the problems of VIE mode.In this regard,it is necessary to strengthen monopoly punishment within a reasonable range,improve the enterprise information disclosure system and take other measures to protect competition.