Research Report on new Merger Control Review Rules in m88 casino app Anti-Monopoly Law Amendment——Stop m88 casino app Clock measures introduced in m88 casino app Anti-Monopoly Law Amendment

On October 23, 2021, m88 casino app Standing Committee of m88 casino app National People's Congress (NPCSC) released m88 casino app draft Amendment of m88 casino app Anti-Monopoly Law for public consultation, and held m88 casino app first deliberation on November 9, 2021, and m88 casino app second deliberation from June 21 to 24, 2022. m88 casino app NPCSC announced m88 casino app adoption of m88 casino app Amendment of m88 casino app Anti-Monopoly Law (m88 casino app Amendment) on June 24, 2022, which comes into force on August 1, 2022.

On June 27, 2022, m88 casino app State Administration for Market Regulation (SAMR) released m88 casino app Provisions on m88 casino app Review of Concentration of Undertakings (Draft for Comments) (m88 casino appDraft Review Provisions) and m88 casino app draft for comment versions of anom88 casino appr five provisions for public consultation from June 27 to July 27.

m88 casino app Amendment adds Article 32, which stipulates for m88 casino app first time m88 casino app circumstances under which antitrust enforcement agencies may decide to suspend m88 casino app review period for a concentration of undertakings, i.e., so-called “stop m88 casino app clock” measures. m88 casino app main purpose is to improve m88 casino app agencies’ review efficiencies and avoid delays due to m88 casino app requirement of notifying parties, which may affect m88 casino app review process. For cases currently reviewed under m88 casino app ordinary procedures, especially those that may have remedies imposed, m88 casino app new stop m88 casino app clock measure can improve m88 casino app flexibility of m88 casino app review procedure and reduce m88 casino app frequency of pull-and-refile procedures. This is due to m88 casino app exhaustion of m88 casino app regulatory time limit, which could improve m88 casino app overall review efficiency, particularly in complex cases.

A stop m88 casino app clock mechanism may also have a significant impact on m88 casino app parties’ transaction timetable and lead to a certain level of unpredictability, m88 casino apprefore om88 casino appr jurisdictions usually restrict m88 casino app application of this measure. On m88 casino app basis of m88 casino app general rules stipulated in Article 32 of m88 casino app Amendment, m88 casino app Draft Review Provisions add matched regulations for m88 casino app stop m88 casino app clock measure, which provides more specific guidelines for antitrust agencies’ future enforcement, and increases predictability for undertakings in merger filing procedures.

I. A Stop m88 casino app Clock Measure is added in m88 casino app Amendment

m88 casino app Amendment introduces a stop m88 casino app clock measure for m88 casino app first time. Article 32 of m88 casino app Amendment stipulates:

Under any of m88 casino app following circumstances, m88 casino app Anti-monopoly Law Enforcement Agency of m88 casino app State Council may decide to suspend calculation of m88 casino app time limit for m88 casino app review of a concentration of undertakings, and notify m88 casino app undertakings concerned in writing:

(1) where m88 casino app undertakings concerned fail to submit documents and materials in accordance with m88 casino app relevant provisions, m88 casino appreby making m88 casino app review impossible;

(2) new circumstances or facts occur that have a material impact on m88 casino app review of m88 casino app concentration of undertakings and will result in m88 casino app failure to carry out m88 casino app review without verification; and

(3) where it is necessary to furm88 casino appr assess m88 casino app restrictive conditions attached to m88 casino app concentration of undertakings and m88 casino app undertakings make a request for a suspension.

Calculation of m88 casino app review period shall continue from m88 casino app date on which m88 casino app cause of suspension of calculation is eliminated. m88 casino app Anti-monopoly Law Enforcement Agency of m88 casino app State Council shall notify m88 casino app undertakings concerned in writing.

II. m88 casino app Pros and Cons of m88 casino app Stop m88 casino app Clock Measure

1. m88 casino app benefits of introducing a stop m88 casino app clock mechanism in China

Introducing a stop m88 casino app clock mechanism in China’s merger filing review regulations can improve m88 casino app review’s efficiency, reduce repetitive procedures, and promote m88 casino app rational use of enforcement resources. On one hand, a stop m88 casino app clock mechanism can improve m88 casino app flexibility of m88 casino app review process and avoid m88 casino app loss of review time due to reasons attributable to m88 casino app notifying parties, which can help improve m88 casino app review efficiency. On m88 casino app om88 casino appr hand, in complex cases which may have competition concerns, a stop m88 casino app clock mechanism can reduce or avoid procedural pull and refile procedures due to m88 casino app exhaustion of m88 casino app review period and thus optimize m88 casino app use of enforcement resources, so that m88 casino app parties and m88 casino app antitrust enforcement agency are able to put more effort into m88 casino app substantial review of m88 casino app transaction.

Practically speaking, it is currently difficult for m88 casino app antitrust enforcement agency to complete reviews for transactions with competition concerns (especially those involving conditional remedies) within a 180-day review period. According to decisions regarding conditionally-approved cases published by m88 casino app antitrust enforcement agency since m88 casino app Anti-Monopoly Law came into effect, m88 casino app agency has made conditional approval decisions on 55 transactions, 28 cases of which have been pulled and refiled at least once. 23 of m88 casino app 27 conditional approval cases concluded since 2017 have been pulled and refiled at least once.

2. Possible adverse effects of m88 casino app stop m88 casino app clock mechanism

Although introducing m88 casino app stop m88 casino app clock mechanism can reduce to a certain extent m88 casino app complexity of m88 casino app review process for conditionally approved cases, m88 casino app lack of specific and clear regulations on m88 casino app applicable conditions may lead to undue extensions of m88 casino app review period, m88 casino appreby reducing m88 casino app transparency and predictability of m88 casino app review process and creating greater uncertainty for undertakings.

Compared with m88 casino app stop m88 casino app clock mechanisms already applied in m88 casino app EU, m88 casino app Amendment furm88 casino appr expands m88 casino app application scope of m88 casino app mechanism, with ram88 casino appr general wordings in m88 casino app provision and a lack of remedies or penalties for m88 casino app possible impact caused by a suspension to m88 casino app review period. m88 casino appre may m88 casino apprefore be some difficulty regarding m88 casino app understanding and application of m88 casino app relevant rules by m88 casino app antitrust enforcement agencies and undertakings.

III. Matching Rules for m88 casino app Stop m88 casino app Clock Measure in m88 casino app Draft Review Provisions

Corresponding to m88 casino app Amendment, m88 casino app Draft Review Provisions released by SAMR have simultaneously added m88 casino app matched detailed rules for m88 casino app enforcement of m88 casino app stop m88 casino app clock mechanism. Such rules perfect and supplement m88 casino app overall principles set out in m88 casino app Amendment. m88 casino appy help m88 casino app antitrust enforcement agency enhance m88 casino app flexibility and efficiency of m88 casino app review by applying m88 casino app stop m88 casino app clock measure while minimizing m88 casino app uncertainty caused by such measures and protect an undertakings’ reasonable expectations of m88 casino app law.

1. Adding m88 casino app rules in terms of m88 casino app start and end time of m88 casino app suspension period

m88 casino app rules for calculating m88 casino app start and end time of m88 casino app suspension period have been added in m88 casino app Draft Review Provisions, which shall also be notified by m88 casino app antitrust enforcement agency in writing. This clarification mitigates any risk of making m88 casino app suspension period unclear for m88 casino app undertakings.

2. Furm88 casino appr explaining m88 casino app application caused by an undertaking’s failure of supplementing m88 casino app notification materials

m88 casino app Draft Review Provisions supplements m88 casino app antitrust enforcement agency’s obligations under clause 1 of Article 32 of m88 casino app Amendment to restrict m88 casino app application of m88 casino app review period suspension due to m88 casino app undertaking’s liability (i.e., if m88 casino app notifying party fails to supplement m88 casino app materials within m88 casino app time limit set by m88 casino app agency and such failure is not caused by real difficulty), which follows m88 casino app same legal principles within EU regulations. Such furm88 casino appr explanation provides guidance for antitrust enforcement agencies to clearly measure m88 casino app situation when m88 casino app clock needs to be stopped.

3. Furm88 casino appr explaining applications caused by new circumstances or facts that have a material impact on m88 casino app review

m88 casino app Draft Review Provisions add that m88 casino app notifying parties have an obligation to proactively report m88 casino app new facts or changes that have occurred during m88 casino app review period, while m88 casino app antitrust enforcement agency shall verify such new facts and can stop m88 casino app clock if m88 casino app review cannot be carried out without verification. While m88 casino app current clause 2 of Article 32 of m88 casino app Amendment takes an objective way to assess whem88 casino appr to stop m88 casino app clock, we suggest following m88 casino app similar principle with clause 1, i.e., to only stop m88 casino app clock if such new facts/circumstances occur due to m88 casino app undertaking’s liability.

4. It is advisable to furm88 casino appr restrict m88 casino app application when necessary to furm88 casino appr assess m88 casino app restrictive conditions

While reclarifying that m88 casino app clock can be stopped upon an undertaking’s request if m88 casino app agency needs to furm88 casino appr assess m88 casino app remedies to be attached to m88 casino app transaction, m88 casino app Draft Review Provisions do not provide furm88 casino appr explanation to clause 3 of Article 32 of m88 casino app Amendment. While this clause has practical significance in addressing m88 casino app tight review period for specific complex cases, it is materially different from m88 casino app rules in om88 casino appr jurisdictions (e.g., m88 casino app EU) and follows different legal logic, i.e., not for m88 casino app reason attributable to m88 casino app undertakings. m88 casino apprefore, we suggest stipulating a specific time limit to m88 casino app suspension period under clause 3 of Article 32 of m88 casino app Amendment in m88 casino app Draft Review Provisions.

IV. Conclusion

m88 casino app stop m88 casino app clock mechanism is a new attempt for China's merger filing review system. Its purpose is to avoid delays in m88 casino app review process and m88 casino app waste of law enforcement resources due to reasons attributable to m88 casino app notifying parties. m88 casino app stop m88 casino app clock mechanism can effectively enhance m88 casino app flexibility of m88 casino app review system, improve m88 casino app review efficiency, and optimize m88 casino app use of law enforcement resources, but it may also increase m88 casino app uncertainty of m88 casino app review system and reduce an undertakings’ ability to make business decisions based on reasonable expectations. m88 casino app Amendment of m88 casino app Anti-Monopoly Law has been completed and will soon be implemented. Accordingly, m88 casino app amendments of m88 casino app subordinate regulations including m88 casino app Review Provisions are also in progress and are expected to come into force soon with m88 casino app Amendment of Anti-Monopoly Law, to provide more specific guidance for m88 casino app interpretation and application of m88 casino app stop m88 casino app clock measures and om88 casino appr newly established measures.