KWM’s China antitrust team, led by Susan Ning, have posted an article on MOFCOM’s conditional clearance of Baxter’s acquisition of Gambro on our sister blog, China Law Insight.
According to the approval condition, Gambro must sell its global continuous renal replacement therapy (CRRT) business and terminate an OEM production agreement with Japan’s Nipro Corporation regarding HD by March 31, 2013.
As Susan’s post notes, the deal has also been given clearance in the EU conditional upon the divestment of its CRRT business, although the European Commission’s decision is not yet available.
In Australia, Baxter has offered a court enforceable undertaking under section 87B of the Competition and Consumer Act 2010 (Cth), which gives effect to the global divestitures in Australia and provides for upfront ACCC approval of the proposed purchaser of the global business to be divested. Pursuant to the s.87B undertaking, Baxter would be required to:
- comply with the EC Commitments to the extent that they relate to the divestiture business in Australia;
- sell the divestiture business only to an ACCC approved purchaser; and
- in the event that the sale of the divestiture business to the ACCC approved purchaser cannot be completed, Baxter must submit an alternative proposed purchaser for consideration by the ACCC.
In Australia, Baxter has proposed that it sell the CCRT business to Nikkiso Co. Ltd. a publicly listed Japanese company. The ACCC has indicated that it is awaiting the release of the EC’s decision before deciding whether to accept the undertaking, so as to be certain of the identity of the purchaser of the global divestiture business that will be approved by the EC.
Baxter’s dialysis business has previously receiving competition scrutiny in Australia when certain of its tendering practices were found by the Federal Court to amount to a misuse of market power and exclusive dealing.