CHINA Law and Practice Contributed by: Jeff Liu, Jeanette Wang, Yulong Lai and Yun Bi, Shihui Partners
and FRAND commitments), terminating exclusive agreements, modifying platform rules or algo - rithms, offering compatibility or not reducing inter - operability level, and “hold separate” orders that require the transaction parties to operate indepen - dently for a period of time; or • Hybrid remedies: comprehensive conditions com - bining both structural remedies and behavioural conditions. Parties may propose remedies either before or after the SAMR informs them that the transaction may raise substantial competition concerns. The SAMR evalu - ates whether the remedies proposed by the parties adequately address those competition concerns. The SAMR may propose remedies to the parties but can - not force them to accept. Only when the parties and the SAMR agree on proposed remedies can they be imposed in the transaction’s conditional clearance. 4.7 Third-Party Participation Third parties (including competitors, customers, sup - pliers, employees and other third parties) are entitled to be involved in merger control proceedings. For cases under the simplified review procedure, any third party is allowed to provide comments during the pub - lic announcement period of ten calendar days from the formal acceptance of the filing. For cases under the normal procedure, third parties are also permitted to provide comments to the SAMR, and the SAMR may solicit comments from key stakeholders on mar - ket definition and accuracy of market data, and opin - ions on the impacts of the transaction on the relevant market. 4.8 Confidentiality and Transparency The authority is obliged to maintain the confidential - ity of commercial secrets, personal information and national security secrets obtained in merger review. The Notification Forms submitted by the parties are not publicly available to third parties or the public. For cases reviewed under the simplified review proce - dure, the SAMR publicly releases a Public Announce - ment Form submitted by the parties, which sets out a key summary of the transaction, a brief introduction to the parties, reasons that the transaction is eligible for simplified procedure, a description of the relevant
markets, and a range of market shares of the under - takings concerned. The SAMR only publishes the full decision for condi - tionally approved and prohibited cases, which sets out a range of market shares of the undertakings con - cerned without disclosing confidential information. For all cases (including unconditional approval cases), the SAMR publishes the name of the transaction, the undertakings concerned and the approval date. In 2025, the SAMR started to publish some cases for reference, in which the SAMR redacted the identities of the undertakings concerned and other confidential information. 4.9 Appeals and Judicial Review of Merger Decisions Pursuant to Article 65 of the AML, parties may appeal against prohibition decisions and conditional approval decisions, which may be submitted for administrative review and then for judicial review by filing an admin - istrative lawsuit if the parties are not satisfied with the result of the administrative review. In December 2024, the Beijing Intellectual Property Court made a ruling to uphold the validity of the condi - tional approval made by the SAMR for the acquisition of Tobishi by Simcere, which was also the first below- threshold conditionally approved transaction in China. The SAMR conditionally approved the transaction in September 2023, and Tobishi appealed for adminis - trative review and then judicial review. Tobishi did not further file an appeal against the ruling by the Beijing Intellectual Property Court. 5. FDI and National Security Screening 5.1 Existence and Objectives of FDI/National Security Regime In China, FDI that has an impact or potential impact on national security is subject to NSR, as stipulated in both the National Security Law and the FIL. The review regime was established in 2011 and further updated by the NSR Measures jointly published by the NDRC and MOFCOM on 19 December 2020 and effective from 18 January 2021.
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