On 6 June 2012, the Ministry of Commerce ("MOFCOM") issued a revised Merger Filing Form (the "Form"). The Form introduces several additional requirements compared to the old form and is likely to increase the administrative burden for the applicants. The Form, however, also provides some welcome clarification on how it should be completed.
New burdensome requirements provided for in the Form include:
- The requirement (inspired by similar obligations under EU merger control law and the US HSR Act) to submit research results, reports and analyses drafted by directors, supervisors and senior management and by external advisors to assess the contemplated transaction. Satisfying this requirement will not only be time-consuming, but might also justifiably raise concerns about confidentiality.
- The requirement that the necessary descriptions of products and services need to be categorised in accordance with the categories used by the Chinese National Bureau of Statistics.
Clarification is provided by the inclusion of several definitions in the Form. Another positive development is that in contrast to the old form, the Form now offers the option to include whether the information provided is confidential or non-confidential. The old form did not offer this distinction, which resulted in applicants not providing sufficient information out of fear that confidential information would become public.