CHINA Law and Practice Contributed by: Liu Cheng and Li Yumeng (Audrey), King & Wood Mallesons
Foreign Subsidy In China, we do not have a separate filing pro - cedure to review foreign subsidies before the implementation of the transaction. However, the Horizontal Merger Review Guidelines pro - vide that antitrust enforcement authorities may request parties to the transaction to provide information on the governmental subsidies received when there is evidence indicating that governmental subsidies may raise competition concerns. In addition, the Anti-Subsidy Regulations of the People’s Republic of China also regulate relevant issues, stipulating that the Trade Rem - edy Investigation Bureau under MOFCOM has the jurisdiction to investigate relevant conducts if subsidies granted by foreign governmental authorities have resulted in substantial harm or threat to domestic industries. NSR Regime According to FIL and the NSR Measures, foreign investments falling into the following categories shall be subject to an NSR review: • investments in military industry, fields sup - porting the military industry and other fields relating to the security of national defence, and investments in areas surrounding military facilities and military industry facilities; and • a foreign investor acquiring control over important agricultural products, important energy and resources, important equip - ment manufacturing, important infrastruc - ture, important transport services, important cultural products and services, important information technology and internet products and services, important financial services, key technologies and other important fields relat - ing to national security.
For the above-mentioned foreign investments, foreign investors shall submit the NSR filing to the NSR working mechanism office established by the State Council (“NSR Office”) prior to implementation of the transaction. For the purpose of NSR, the term “foreign invest - ment” refers to investment activities carried out by foreign investors directly or indirectly within China, including the following circumstances: • where foreign investors invest, solely or jointly with other investors, in new projects or in establishing enterprises in China; • where foreign investors acquire equity or assets of domestic enterprises by way of merger or acquisition; or • where foreign investors make investments in China in any other form. For these foreign investments, foreign investors must submit the NSR filing to the NSR Office prior to the implementation of the transaction.
102 CHAMBERS.COM
Powered by FlippingBook