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Strange Bedfellows or Soulmates: A Comparison of Merger Regulation in China and Australia

Published online by Cambridge University Press:  16 April 2015

Deborah J. Healey
Deborah J. Healey*
Affiliation:
University of New South Wales
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Abstract

China and Australia are extremely significant trade partners and investors. Australia has a very well established competition law, now called the Competition and Consumer Law 2010, with a well-established merger regime. China has a relatively new competition law, the Anti-Monopoly Law 2007. This article compares merger control in the two jurisdictions. The Ministry of Commerce (MOFCOM) has already referred to an Australian decision in rejecting a merger, the only reference to a foreign decision to date, which confirms the utility of the comparison. This article critically evaluates the determinations of MOFCOM and compares the approach of the Australian Competition and Consumer Commission (ACCC), the Australian regulator. It assesses the transparency and predictability of procedures and decision-making in the two jurisdictions.

Keywords

comparative lawChinaAustraliacompetition lawanti-monopoly lawmergersmarket definitioncompetition assessmentconditions
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 7 , 2012 , pp. 1 - 40
Copyright
Copyright © Faculty of Law, National University of Singapore 2012

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References

1 See online: <http://www.uschina.org/statistics/tradetable.html>.

2 Drysdale, Peter, “A New Look at Chinese FDI in Australia” (2011) China and World Economy Vol. 19, Issue 4, 54 CrossRefGoogle Scholar.

3 The Competition and Consumer Act 2010 (CCA) was formerly the Trade Practices Act 1974, which replaced laws operative since 1906 but not enforced.

4 For the purposes of this article “mergers” encompasses mergers and acquisitions in relation to the CCA and “concentrations” in relation to the AML.

5 See discussion in Healey, Deborah, “An Anti-monopoly Law for China: Weapon or Mirage?” (2008) 16 C.C.L.J. 220–245 Google Scholar.

6 Productivity Commission, Review of National Competition Policy (14 April 2005) at xiv, online: <http://www.pc.gov.au/projects/inquiry/ncp/docs/finalreport>>Google ScholarPubMed; see also Emerson, Hon. Dr. Craig, Minister for Trade, “The future of trade policy in an uncertain world” (Address to Lowy Institute, 10 December 2010), online: <http://www.trademinister.gov.au/speeches/2010/ce_sp_101210.html>Google Scholar.

7 CCA, s. 2.

8 The CCA does, however, look at issues relating to exports, the interaction between domestic products and imports, and the international competitiveness of Australian industry in the context of public benefit in the little-used authorisation context, discussed below.

9 AML, Art. 1 and, for example, Arts. 4, 11.

10 AML, Art. 7.

11 See Furse, Mark, Antitrust Law in China, Korea and Vietnam (Oxford: Oxford University Press, 2009)Google Scholar where the author refers to Huang, Yong, “Pursuing the Second Best: The History, Momentum and Remaining Issues of China's Anti-Monopoly Law” (2008) Antitrust L.J. 117 at 128 Google Scholar. The author also refers to Officials of the State Council who commented, when turnover thresholds were published in August 2008, that it was necessary for Chinese industrial policy for “enterprises to be stronger and bigger” and that moves that facilitated this goal would be encouraged. See Officials of the Legislation Office of State Council Answering Reporters' Questions Regarding Rules of State Council on Notification Thresholds for Concentrations of Operators (4 August 2008), online: <http://www.gov.cn/zwhd/2008-08/04content_1063736.htm>.

12 General Electric China Ltd and China Shenhua Coal to Liquid and Chemical Co., Ltd [2011] MOFCOM No. 74, 10 November 2011.

13 Healey, Deborah, “Anti-Monopoly Law and Mergers in China: An Early Report card on Procedural and Substantive Issues” (2010) Tsinghua China Law Review, Vol. 3, Number 1 (Fall 2010) 19–58 Google Scholar.

14 Under the AML, MOFCOM is obliged to provide written determinations only where there is a refusal or approval with conditions.

15 See Xiaomin, Fang, “How Far Is China from an Appropriate Regime of Merger Regulation – In Perspective of Predictability and Transparency” (Paper presented to the Hong Kong Asian Competition Forum, December 2010 at 6)Google Scholar, where the author states in reference to Art. 1 of the AML: “Obviously, when the plural apparently parallel values such as the dual goals of merger control, industrial policy to encourage enlargement and strengthen of [sic] enterprises and competition policy contradict each other, the basic principle to protect the effective competitive order has the priority. Based on this kind of value hierarchy the dual goals are coordinated and unified.”

16 See, for example, Zheng, Wentong, “New Article on Chinas Anti-monopoly Law 1 year after inception”, online: <http://ns2.practicesource.com/australian-asian-legal-eye/wentong-zheng-new-article-on-china-s-antimonopoly-law-1 -year-after-inception>>Google Scholar.

17 See Productivity Commission 2005, Review of National Competition Policy Reforms, Report No. 33, Canberra, at 13–15, online: <http://www.pc.gov.au/projects/inquiry/ncp/docs/finalreport>>Google Scholar.

18 See, for example, “US says China not abusing anti-monopoly law” Reuters (25 July 2011), quoting the Chairman of the U.S. Federal Trade Commission Jon Leibowitz, online: <http://www.Reuters.com/article/2011/07/25/businesspro-us-china-trade/idUSTRE7601E82011725>>Google ScholarPubMed.

19 See, for example, abuse of dominance actions against Baidu ( Zhang, Angela Huyue, “Using a Sledgehammer to Crack a Nut: Why China's Anti-Monopoly Law was Inappropriate for Renren v Baidu” (2011) 7 Competition Policy International 277)Google Scholar, Shanda, , “China Mobile (China Mobile Settles Anti-Monopoly Lawsuit with Beijing Lawyer)” Bloomberg (27 October 2009), online: <http://www.bloomberg.com/apps/news?pd=newsarchive&id=acD_c3yFTDm4>Google Scholar although none was ultimately successful. See also the case against Hubei salt for bundling, online: <http://www.concurrences.com/article.php3?id-article=42051&lang=fr>. The view that foreign companies are not targeted is also confirmed in the following comments in MOFCOM, Government Report 2011: Main Objectives and Tasks for the Twelfth Five-Year Plan (20 March 2011, online: <http://english.mofcom.gov.cn/aarticle/newsrelease/counselorsoffice/westernasisandafricareport/201103/20110307456059.html> at 2, where it is stated: “We will uphold and improve the basic economic system, and create an institutional environment under which economic entities under all forms of ownership use factors of productions equally in accordance with the law, engage in fair competition in the market, and enjoy equal legal protection.”

20 See generally Perenboom, Randall, China's Long March toward a Rule of Law (Cambridge: Cambridge University Press, 2002) particularly at Ch. 6 “The legislative system: battling chaos”CrossRefGoogle Scholar; Bruce Owen, S. Sun & Zheng, Whentong, “China's Competition policy reforms: the Anti-Monopoly Law and beyond” (2008) 75 Antitrust L.J. 1 at 5 Google Scholar.

21 See Owen, Sun & Zheng, “China's Competition policy reforms: the Anti-Monopoly Law and beyond”, supra note 20 at 13, Liu, citing C.X., “A Quiet Revolution: An Overview of China's Judicial Reform” (2003) Asian-Pac. L. & Pol.'y J. 9 Google Scholar.

22 AML, Art. 53.

23 Discussed generally below. Where the options of Formal Merger Clearance or authorisation are used there is review by the Australian Competition Tribunal (ACT).

24 Court action is rarely taken.

25 MOFCOM is one of three regulators with responsibility for the AML, the others being National Development and Reform Commission (NDRC) and State Administration of Industry and Commerce (SAIC). Only MOFCOM has responsibility for the area of mergers.

26 CCA, Part II.

27 There was an increase of 50% in 2011 compared to 2010. Rose, Norton, “Competition Law in East Asia A Month in Review”, January 2012 Google Scholar.

28 See comments of Gao Huchweng, China International Trade Representative and Vice Commerce Minister, addressing the National Commercial Conference on Anti-Monopoly, 12 January 2012, online: <http://english.mofcom.gov.cn/aarticle/newsrelease/significantnews/201201/20120107931142.html>.

29 Compare, for example, InBev N.V./S.A /Anheuser-Busch Companies Inc [2008] MOFCOM No. 95, 18 November 2008, with Seagate Technology/ Samsung Electronics [2011] MOFCOM No. 90 12 December 2011.

30 Regarding informal clearance in Australia, see online: <http://www.accc.gov.au/content/index.phtml/itemId/750991#informal>.

31 AML, Art. 20. The decision in the GE/Shenhua joint venture, supra note 12, confirmed that the provisions apply to joint ventures.

32 AML, Art. 28.

33 AML, Art. 28.

34 With minor procedural amendments.

35 “Acquisitions” are acquisitions of shares or assets. “Acquisition of shares” means acquisition alone or jointly of a “legal or equitable interest” therein (CCA, s. 4(4)), and includes the grant of an option to purchase shares.

36 CCA, s. 50. CCA, s. 50A applies to limited offshore mergers but has never been used.

37 See online: <http://www.accc.gov.au>.

38 Measures on Notification of Concentrations of Business Operators, November 2009. See also Directive Opinions on Documents and Information Submitted for Notification of Concentration of Business Operators, July 2010. It has been suggested that the thresholds are relatively low and result in the notification of too many mergers, including international mergers which have little connection with China.

39 AML, Art. 26.

40 This is a well-established practice over a long period of time which is described in the ACCC, Merger Review Process Guidelines, July 2006 Google Scholar, in conjunction with the Merger Guidelines 2008.

41 CCA, s. 111(1).

42 CCA, s. 95AC(2).

43 CCA, s. 95AT-AZM.

44 See, for example, Re Qantas Airways (2004) ATPR 42-027.

45 CCA, s. 95AZH(1).

46 CCA, s. 95AZH(2).

47 This process is set out in ACCC, Merger Review Process Guidelines, supra note 39. Non-confidential public review of proposed transactions takes around eight weeks. A second round of inquiries takes an additional 12 weeks before ACCC decision.

48 The ACCC always reserves the right to re-open a case if new information emerges. See, for example, AP/Sigma merger, referred to in Corones, S.G., Competition law in Australia, 5th ed. (Sydney: Thomson Reuters Australia, 2010) at 409 Google Scholar.

49 The parties can reach an agreement with the ACCC on enforceable undertakings under s. 87B of the CCA. In the Metcash case [2011] FCA 967 (25 August 2011) the parties chose to proceed regardless of the ACCC view, and the ACCC took court action to prevent the merger. The court overturned the ACCC on both market definition and likely competitive impact. Australian Gas Light Co v ACCC (No 3) (2003) 137 FCR 317.

51 Eight-five per cent were resolved within eight weeks.

52 NAB/AXA, Metcash/Franklins and Asahi/P&N. Metcash/Franklins referred to here is the Metcash case, supra note 49, and discussed in more detail later.

53 7-Eleven/Mobil, Peregrine/Mobil, Novartis/Alcon, Scandinavian Tobacco/Swedish Match, Aspen/Sigma Pharmaceutical, Onesteel/Moly-Corp. See Walker, J. Commissioner ACCC “Developments in Competition Law” (Paper presented at the RBB Economics Australian Conference, 8 June 2011), online: <http://www.accc.gov.au/content/index.phtml/itemId/993868/fromItemId/8973> at 6 and 7 Google Scholar.

54 See UNCTAD, The Challenges Of Transition For Competition Law And Policy In China, Note by the Secretariat, January 2009, DAF/COMP/GF(2008)2/REV1 at 25 Google Scholar which identifies problems of competition in the Chinese economy, and notes that a variety of factors result in low national concentration, many markets operating below minimum efficient scale and significant market distortions.

55 Effective 1 February 2012.

56 See King, & Wood, , “China: MOFCOM getting Tough on Failure to Notify a Concentration”, 18 January 2012, online: <http://www.kingandwood.com/Bulletin/ChinaBulletin.aspx?id=66303a3b-da59-4d89-8323-b76086e561be&language=en>Google Scholar.

57 AML, Art. 12.

58 More precisely, for merger law purposes, Australia, a territory, state or region: CCA, s. 50(6).

59 CCA, s. 4E.

60 Re Queensland Co-operative Milling Association Limited (1976) 40-012 (Re QCMA) at 17, 247 Google Scholar.

61 See Re QCMA, supra note 60.

62 7 July 2009.

63 For “small but significant non transitory increase in price”.

64 Re QCMA, supra note 60.

65 InBev/Anheuser Busch, supra note 29.

66 MOFCOM No. 28 of 2009, 24 April 2009.

67 MOFCOM No. 77 of 2009, 29 September 2009.

68 MOFCOM No. 82 of 2009, 30 October 2009.

69 MOFCOM No. of 2010, 13 August 2010.

70 In Australia, this is merely the starting point for market definition. See ACCC Merger Guidelines, supra note 39 at para. 4.11.

71 MOFCOM No. 22 of 2009, 18 March 2009.

72 Further comments by MOFCOM officials in the context of criticisms of the decision, discussed below, were a little more expansive.

73 [2009] MOFCOM No. 76, 28 September 2009.

74 [2011] MOFCOM No. 33, 2 June 2011.

75 Savio Macchine Tessili S.P.A. by Penelope Company Limited [2011] MOFCOM No. 73, 31 October 2011.

76 Supra note 12.

77 General Electric (China) (“GE China”) was a foreign invested company owned by General Electric (“GE”) in China. Another subsidiary of GE, GE Infrastructure Technology Company, licensed the technology to the joint venture. The Shenhua parent, Shenhua Group Co, was an energy enterprise focussing on coal, electricity, heating, railway and port transportation services.

78 Supra note 29.

79 Other competition regulators tended to break the market down further by the form and end use of the HDDs – see for example E.U. (separate worldwide markets for hard disk drives based on their end use application (such as desktop computers, mobile computers, servers and a separate market for “external hard disk drives in the European Economic Area, which is downstream from hard disk drives”), online: <http://ec.europa.eu/competition/elojade/lsef/case_details.cfm?proc_code=2_M_6214>; Australia (5 separate product markets), online: <http://www.accc.gov.au/content/index.phtml/itemId/1022164/fromItemId/751046>.

80 [2012] MOFCOM No. 9, 2 March 2012.

81 [2012] MOFCOM No. 6, 9 February 2012.

82 [2012] MOFCOM No. 25, 19 May 2012. This analysis of the decision uses the translation in Rose, Norton, “Competition Law in East Asia A Month in Review” Issue 42, May 2012 Google Scholar.

83 ACCC, Google /Motorola Mobility, 21 February 2012.

84 See UNCTAD, The Challenges Of Transition For Competition Law And Policy In China, Note by the Secretariat, January 2009, DAF/COMP/GF(2008)2/REV1 at 25, which identifies problems of competition in an economy which still reflects to some extent previous goals of local self-sufficiency and domination by the state economy. These and other factors result in low national concentration, many markets operating below minimum efficient scale and significant market distortions.

85 Public Competition Assessment, 8 October 2003, online: <http://www.accc.gov.au>.

86 When compared to the margins obtained from supply to major retail chains.

87 ACCC, Asahi Holdings (Australia) Pty Ltd – proposed acquisition of P & N Beverages Australia Pty Ltd, 13 September 2011, online: <http://www.accc.gov.au/content/index.phtml/itemId/1002216/fromItemId/751043>.

88 TPC v Australian Meat Holdings Pty Ltd (1988) 83 ALR 299. This part of his Honour's judgment was upheld on appeal: Australian Meat Holdings Pty Ltd v TPC (1989) ATPR 40-932.

89 Product markets were separated into “fat cattle”, “store cattle” and “feed lot cattle” on the basis of their different characteristics and suitability, particularly how long it would be before they were slaughtered.

90 “Fat cattle” were cattle ready for immediate slaughter.

91 Supra note 50. This merger was taken to court by AGL when the ACCC refused to grant informal clearance and threatened to take court action should AGL proceed. AGL sought a declaration that the transaction did not breach s. 50 of the CCA.

92 The States of New South Wales, Queensland and Victoria.

93 Supra note 50 at 431.

94 QIW Retailers Ltd. v Davids Holdings Ltd; Attorney General (Cth) v Davids Holdings Pty Ltd (No. 3), (1993) 42 FCR 255 Google Scholar. Independent retailers were retailers not part of large national chains of retail stores. The competition analysis in this case was made under the previous dominance test which set a higher threshold for breach.

95 (1995) ATPR 41-438. This was an unrelated transaction of a similar character in another State.

96 At the time the ACCC had power to grant authorisations for mergers, with appeals to the ACT.

97 [2011] FCA 967, 25 August 2011. The ACCC appeal to the Full Federal Court was dismissed.

98 Supra note 94.

99 The Full Court pointed out that the factual situation in the QIW Retailers Ltd v Davids Holdings Ltd, supra note 94, was quite different to the Metcash scenario, supra note 97.

100 AML, Art. 28.

101 Ibid.

102 AML, Art. 27. It should be noted that announcements of MOFCOM routinely state that they have looked at each of these factors without further elaboration.

103 Although it does bear some similarity to the issues for consideration under the rarely used authorisation process in Australia. Art. 30 also provides for an additional security review of mergers in sensitive industries.

104 On 2 September 2011, operative 5 September 2011.

105 These factors comply with the International Competition Network list of recommended practices on this issue: see online: <http://www.internationalcompetitionnetwork.org/uploads/library/doc316.pdf>.

106 Online: <www.accc.gov.au/content/index.phtml/itemId/810047>. See also Merger Review Process Guidelines, online: <http://www.accc.gov.au/content/index.phtml/itemId/740765>.

107 Australian Merger Guidelines, paras. 3.17-3.22.

108 Australian Gas Light Co v ACCC, supra note 50 at paras. 344-351. Some uncertainty currently exists about the standard of proof applied in assessing counterfactuals, arising from the decision in ACCC v Metcash Trading Limited, supra note 97.

109 Ibid.

110 Ibid. at para. 9.

111 Supra note 97.

112 Countervailing market power, for example, is more likely to be raised in an approval than a rejection, but as there are no written determinations in approvals it is difficult to discern how MOFCOM deals with the issue.

113 Supra note 29.

114 See AML Merger Guidelines, Arts. 8, 9.

115 See AML Merger Guidelines, Art. 6.

116 Prior to 2008, the ACCC set safe harbours using the CR4 method, also mentioned in the AML Merger Guidelines. The ACCC always reserves the right to involve itself regardless of the HHI outcome, as China does in relation to notification turnover thresholds.

117 The delta is the change in the market concentrations a result of the merger.

118 Australian Merger Guidelines, para. 7.14.

119 Pfizer/Wyeth, supra note 67.

120 The markets for the supply of “market leading cattle and sheep worming products” were a particular focus in Australia, because timely and effective generic entry was unlikely given difficulties with access to the active ingredient for the products, online: <http://www.accc.gov.au/content/index.phtml/itemId/895167/fromItemId/621419>. The conditions required the sale of the Wyeth companion animal business, including a number of companion animal products to Boehringer Ingelheim; and the livestock business including its manufacturing facilities (30 September 2009).

121 In considering the Novartis/Alcon merger, the ACCC (in a determination on 29 July 2010) noted that the parties competed in a number of pharmaceutical product markets relating to eye care. Concerns existed only in the market for injectable miotics, used in eye surgery to rapidly shrink the pupil of the eye. Novartis would be the only supplier in Australia. Novartis gave undertakings to sell these assets. Online: <http://www.accc.gov.au/content/index.phtml1/itenId/940204?pageDefinitionItemId=16940>.

122 See also Google/Motorola Mobility, supra note 82 where market concentration was important to a determination of dominance.

123 Australian Merger Guidelines, para. 7.17.

124 See AML Merger Guidelines, Art. 7.

125 See also Pfizer/Wyeth, supra note 67. These issues were also relevant in Google/Motorola Mobility, supra note 82, discussed later.

126 Supra note 12.

127 Re QCMA, supra note 60.

128 See AML Merger Guidelines, Art. 4.

129 See, for example, portfolio – Coca Cola/Berri Juice, supra note 85; foreclosure – AGL case, supra note 50.

130 Supra note 85.

131 Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 1 at 13 Google Scholar; Boral Besser Masonry Limited v ACCC (2003) 215 CLR 374 at 431 Google Scholar.

132 See s. 2 which focuses on “enhancement of the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection”. See cases such as Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 at 191, 194, 213 Google Scholar, and more recently ACCC v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at [74]Google Scholar.

133 See for example Re Qantas Airways Ltd, supra note 44 at [185].

134 Supra note 71.

135 Supra note 85.

136 Shan, Pingping et al., “China's Anti-Monopoly law: What is the Welfare Standard?” Online First (23 March 2012)Google Scholar.

137 Subsequent to the formal announcement of the determination, a MOFCOM spokesperson, Yoa Jian, reportedly discussed key issues relating to the decision in a question and answer session. This was summarised in Hogan & Hartson, Antitrust Update (27 March 2009) entitled “MOFCOM DISCLOSES DETAILS CONCERNING REJECTION OF COCA-COLA/HUIJUAN TRANSACTION.”

138 Re Qantas Airways, supra note 44 at para. 660. The proceedings involved review of an ACCC refusal of authorisation under a subsequently amended procedure. The ACT concluded that the alliance resulted in little anti-competitive detriment, which was outweighed by the public benefits including the national interest. The authorisation was granted in Australia but the alliance did not eventuate because it was not approved by competition authorities in New Zealand.

139 Supra note 74.

140 See AML Merger Guidelines, Art. 5.

141 See AML Merger Guidelines, Art 5; CCA, s. 50(3)(d).

142 Supra note 78; Australian Merger Guidelines, para. 7.48.

143 Supra note 82.

144 Supra note 50.

145 See AML Merger Guidelines, Art. 12.

146 Australian Merger Guidelines, para. 3.22.

147 Supra note 97.

148 Australian Merger Guidelines, para. 7.61

149 Australian Merger Guidelines, para. 7.38-7.47.

150 Australian Merger Guidelines, para. 7.52.

151 See, for example, Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 581 Google Scholar.

152 Australian Merger Guidelines, para. 7.59.

153 Supra note 73. In considering the GM/Delphi merger, the ACCC (in a determination on 28 April 2009) found national markets for the manufacture of individual motor vehicle steering gears, columns and pumps. There was no problem because alternative suppliers, particularly global suppliers, would constrain the merged parties. Online: <http://www.accc.gov.au/content/index.phtml/itemId/870465/from ItemId/751043>.

154 Supra note 12. See also Google/Motorola Mobility, supra note 82.

155 Supra note 74.

156 Supra note 12.

157 Supra note 75.

158 Supra note 29. MOFCOM treated Western Digital and Viviti as separate businesses despite a parallel transaction involving them which was notified after notification of this transaction.

159 Supra note 82.

160 Supra note 83.

161 The Committee on Foreign Investment in the United States operates under the Defence Production Act 1950, later amendments and a number of regulations. See Bush, Nathan, “SinoCFIUS: Same Wall, Same Guards New Watchtower” (2012) 8 C.L.I. 43 Google Scholar.

162 See Wu, Zhenguo, “Perspectives on the Chinese Anti-Monopoly Law” (2008) 75 Antitrust L. J. 73 at 101 Google Scholar referred to in Bush, “SinoCFIUS: Same Wall, Same Guards New Watchtower”, ibid.

163 Measures on Implementation of Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (Measures), 25 August 2011.

164 Interim Measures on Relevant Matters Concerning the Implementation of Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (Interim Measures), 4 March 2011. The Measures were promulgated to implement the Circular on Establishing a Mechanism of Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (Circular) issued by the State Council in February 2011. See Fels, Allen & Wang, Xiaoye, “China Competition Bulletin”, 12 August 2011, online: <http://www.anzsog.edu.au>Google Scholar.

165 See Rose, Norton, “Competition Law in East Asia: A Month in Review”, March 2011 Issue 28 at 1 Google Scholar.

166 See Wu, Zhengguo, “Perspectives on the Chinese Anti-Monopoly Law” (2008) 75 Antitrust L.J. 73 at 101 Google Scholar, referred to in Bush, “SinoCFIUS: Same Wall, Same Guards New Watchtower”, supra note 161.

167 These elements are the same in the March and September documents. See Notice on the Establishment of a Security Review System for Foreign Acquisitions of Domestic Enterprises 3 February 2011, Art. II.

168 See generally Li-Fen, Wu, “Anti-monopoly, National Security and Industrial Policy: Merger Control in China” (2010) 33 World Competition, Issue 3, 477 Google Scholar.

169 Online: <http://www.firb.gov.au/content/policy.asp?NavID=1>. The framework consists of the 1975 Act, Foreign Acquisitions and Takeovers Regulations 1989, Foreign Acquisitions and Takeovers (Notices) Regulations 1975 and Foreign Investment Policy.

170 Separate legislation had additional requirements or may limit investment in some industries, for example, banking, airports, shipping.

171 Zhile, Wang, “Foreign Acquisition in China: Threat or Security?” 2007 China Security Vol. 3 No. 2 at 86 Google Scholar.

172 Provisional Rules for the Implementation of Asset or Business Divestitures Required for Concentrations of Business Operators, July 2010. Interestingly in the recent Google/Motorola Mobility merger, supra note 82, MOFCOM states in the conditions that it will jointly supervise with the monitoring trustee.

173 Supra note 82.

174 CCA, s. 87B.

175 Supra note 29.

176 Supra note 66. Shares in other merged markets were much smaller.

177 Supra note 73.

178 Supra note 67.

179 Supra note 68. “Rechargeable coin-shaped lithium batteries”.

180 “Nickel hydrogen batteries for general use”.

181 “Nickel-Hydrogen batteries for Vehicles”.

182 Supra note 85.

183 Supra note 74.

184 Asahi was obliged to divest the carbonated soft drinks, cordial and energy drinks business to a new company. Online: <http://www.accc.gov.au/content/index.phtml/itemId/1002216/fromItemId/751043>.

185 Toll/Patrick, online: <http://www.accc.gov.au>.

186 There were at least eight variations to the undertakings over more than two years.

187 Supra note 74.

188 See, for example, Garnault, John, “China's tough stance fails as steel mills go it alone in pricing talks” Sydney Morning Herald (15 August 2009), online: <http://www.smh.com.au/business/chinas-tough-stance-fails-as-steel-mills-go-it-alone-in-pricing-talks-20090814-el4g.html>Google Scholar.

189 Jenny, Frederic, “Export Cartels in Primary Products: The Potash Case in Perspective” in Evenett, Simon & Jenny, Frederic, eds., Trade, Competition, and the Pricing of Commodities (London: Centre for Economic Policy Research, 2012)Google Scholar.

190 Supra note 74.

191 Supra note 29.

192 Supra note 29.

193 Supra note 74.

194 Supra note 73.

195 Supra note 82.

196 Supra note 78.

197 Supra note 80.

198 Supra note 74.

199 Supra note 78.

200 Supra note 82.

201 See, for example, Lewis, James Andrew, “Google and China ‘Top of the World Ma’”, Centre For Strategic and International Studies (23 March 2010), online: <http://csis.org/publication/google-and-china>Google Scholar.

202 [2011] FCA 967, 25 August 2011. The ACCC appeal to the Full Federal Court was dismissed: [22011] FCAC 151, 30 November 2011.

203 Moran, Susannah, “Competition Watchdog rebuff on Metcash merger”, The Australian (1 December 2011), online: <http://www.theaustralian.com.au/business/mergers-acquisitions/competition-watchdog-rebuff-on-metcash-merger/story-fn91vdzj-1226210649821>Google ScholarPubMed.