The Ministry of Commerce (MOFCOM) and the European Commission (EC) entered into a best practices framework in mid-October 2015 for co-operation on reviewing mergers. The framework marks growing co-operation between antitrust regulators and brings multinational acquirers new concerns.
Confidentiality. The EC and MOFCOM agree that, where confidential information is shared between the regulators pursuant to a waiver, each side will ensure the protection of business secrets and other confidential information. When information is provided to either the EC or MOFCOM, it will typically contain extensive information about the parties to the transaction, much of which is confidential and/or constitutes business secrets.
In the EU and in China, the EC and MOFCOM are obliged to keep this confidential, and only use it for the purpose for which it was provided, i.e. reviewing the transaction in their own jurisdiction. The framework, like other co-operation agreements, does not override this duty. However, in practice, both authorities may ask for waivers that allow this information to be exchanged. While technically voluntary, such waivers are normally given as a means of demonstrating effective co-operation.
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Business Law Digest is compiled with the assistance of Baker & McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker & McKenzie by e-mailing Danian Zhang (Shanghai) at:danian.zhang@bakermckenzie.com
