Doing Business In Asia: Merger Control

This presentation, moderated by Mark Katz, provides an overview of merger control regimes, covers recent significant developments in this area, and touches on what to look forward to in 2015.

2015 Asia Forum: ABA Section of International Law, Tokyo, Japan

PANEL

Kala Anandarajah - Rajah & Tann Singapore LLP Janet Hui (Xu Rongrong) - Jun He Kyoung Yeon Kim - Yulchon LLC Takahiro Azuma - Nishimura & Asahi Mark Katz - Davies Ward Phillips & Vineberg LLP (moderator) TOPICS

Overview of Merger Control Regimes Significant Recent Developments International Considerations What to Look for in 2015 Questions JAPAN

Merger filings by foreign companies are increasing Requirements for filing differ depending on the type of transaction, but relatively easily triggered Timing of merger filing is flexible (no need for a definitive agreement) and the notification form is relatively simple However, it sometimes takes time for a draft notification to be formally accepted Merger filing is required for five types of transactions as long as the turnover thresholds are met: (1) share acquisition; (2) merger; (3) company split (demerger); (4) joint share transfer; and (5) acquisition of business/assets Concept of "control" does not exist under Japanese antitrust law Formation of a new company, including a joint venture, is not subject to merger filing unless it involves any of these five transactions No exception for a foreign-to-foreign transaction No short form or simplified review process; however, the form is relatively simple and usually does not take too long to prepare First phase review period is 30 days and the second phase review period is 90 days Few cases proceed to second phase review JFTC will issue a few rounds of questions before it formally accepts the draft notification but clock does not stop If JFTC decides to proceed to second phase review, it will issue a substantial information request at the end of the first phase review/ second phase review period will not start until the parties respond KOREA

Korea is very active in terms of the number of mergers reviewed and sanctions imposed In 2014, KFTC handled total 571 cases, including 120 foreign to foreign cases (around KRW 172.1 trillion) KFTC ordered sanctions (cease and desist orders or administrative fines) for non-compliance in...