MOFCOM's "Fusion" Approach To Chinese Merger Control

We often hear about how China's merger review "diverges" from other jurisdictions, most recently in reaction to conditional approvals of the Seagate/Samsung and Western Digital/Hitachi mergers. But China's MOFCOM is merely doing its homework. Similar to "fusion" cuisine, MOFCOM practices "fusion" merger control as it blends two aspects: its mandate under the Anti-Monopoly Law ("AML"), and the antitrust theories of other jurisdictions.

Unlike other jurisdictions, which are relatively independent of their respective governments, MOFCOM answers to the State Council. Under the AML, MOFCOM's mission has a political perspective to advance "healthy development of a socialist market" and it has the authority to formulate and implement regulations "suitable for the socialist market economy." Therefore, MOFCOM's mission will vary depending on the State Council's national economic policy: whether to move more to a capitalistic market-driven economy or remain as a socialist