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Analysis of enterprise merger and acquisition and national economic security

Author: SuHaiLing From: www.yourpaper.net Posted: 2010-06-02 21:15:51 Read:
Keywords:   the national security review of merger and acquisition; national economic security
Abstract: binding on the state economy security dispute in multinational M & A at present, through the reflection of national economic security control related legislation review and comparative law, based on economic theory and the status quo of China's proposed the specific standards of the national security review, and that the national benefit should not be as measure of national economic security review.
legislation, national economic security
The so-called "National Security Review", derived from the anti-monopoly law provisions in article thirty-one, namely "of foreign acquisitions of domestic enterprises or otherwise participate in the concentration of business operators, involving national security, in addition to the operator in accordance with the provisions of the review, it should carry out the national security review in accordance with the relevant provisions of the country".
The provisions of the said from behind the meaning can be found in several meanings: first, the anti-monopoly review mechanism of the concentration of business operators do not necessarily lead to national security review, antitrust review and national security review are two independent review system; secondly, the national security review by the anti-monopoly law of the instructions, specific provisions of review mechanism is not belongs to the anti-monopoly law, but by other related regulations.However, the focus of national security review of foreign M & a startup and inseparable from the operator, so natural and anti-monopoly law has have all kinds of connections with contact.
Anti-monopoly law in thirty-one legal aspects of national security review of the principle stipulation.However, only clearly for "national security concerns" foreign M & A, shall review.But who review, review, review how to start the object determination, standard of review, review procedures, review of the legal effects are not specified.Anti-monopoly law is only an incidental hints to the national security review mechanism, development also depends on the specific provisions to formulate specific rules.Unfortunately, in the framework of legislation of anti-monopoly law under the current implementation of large, concrete provisions have only the "State Council on merger control regulations" rules for the implementation of this item.
two, national security and national economic security
With reference to the national legislation, the national security review system of various countries in the standard definition of "national security" each of the focus, but in the national defense, military, public safety and other fields are given a great deal of attention.However, even with the perfection of legislation, law enforcement for the United States in science, involving national security review of foreign M & A case also often show beyond legal mania.The United States in 1988 for the national security review mechanism of the jurisdiction scope name is only concerned with national security of foreign acquisitions, the initial aim of the legislation is the maintenance of the United States national security, national economic security, does not take into account factors such as the United States of America.But because there is no clear definition of "national security", has great flexibility in practice, with the changes of the times, its jurisdiction over the national defense security, economic factors, political factors also become the review focus.
From national security to the national economic security, which reflects the state a necessity in their political aspirations: to the traditional developing countries, infant industry protection, safeguard national enterprise survival space is the strategic considerations necessary; for the developed countries, the possibility of different ideology, as well as the new threat of terrorism brings, have from the political field mapping to the economic field.Can say, the national economic security review put forward and strengthen more reflect not legal problem, but a problem of politics.The key lies in the "national economic security" is defined and deconstruction, in different countries and different background in different development stages and different period, this standard should be different.
However, political aspirations reflected in the law is not to demand everything, such as too much emphasis on "national interest" will cause the foreign capital to enter the blocking channels, hinders the economic development and _ through the law of political appeal in the degree and quantity restrictions, perhaps this is the ultimate purpose of setting the related legal rules and regulations the.Therefore, the key problem lies in the definition of "Deconstruction and national economic security", in different countries and different background in different development stages and different period, this standard should be different.
three, national economic safety standards in China again on
(a) doctrinal scanning
From the content point of view, industrial security and economic security is the maintenance of a nation as the main body of the rights and interests of the industry in the international economic competition advantage and avoid damage.Look from the scope, what industry, what industry relates to industrial security and economic security, which industry and industry needs to focus on the protection of, can from the following aspects: (1) to determine whether or not conducive to the interests of the state and the public order and security; (2) whether the serious influence in the country business, enterprise and industry in China naive industry, development; (3) whether beneficial to the people's livelihood, or have greater influence on the foreign capital merger and the merger and acquisition behavior monopoly, competitive too.
The author thinks, although "safe" fuzzy boundaries, but the national economic security strictly limit the understanding in the strategic resources, oil resources, basic resources, financial, fiscal and other highly sensitive areas is very necessary.This is mainly due to the development of the national economy, maintain stable economic environment into account, select the most easily lead to economic turmoil, and even crisis industry in extent.Recently, such as the financial sector, the 2008 financial tsunami is not the first time the attack in mainland China, which depends on the strict government control of the financial sector in a certain extent, on the timetable has not fully to foreign investment in China's financial industry release, it also gave the Chinese financial industry a slightly ample buffer period.
(two) special measure of national interests.
From the Carlyle Xugong case, Coca Cola Huiyuan case related to, "national interests" discussion not repose.However, what is a "national interest"? More often, it seems to be a generalization of the concept of random.The entry of foreign capital, followed by the penetration of foreign capital, and the expansion of foreign brands and domestic brands occupy the concerns, these seem to be foreign real before entering into the opposition of sin.However, from the perspective of economics, foreign capital to the Chinese buy low and sell high is the normal mode of operation of the capital, through cross-border mergers and acquisitions to achieve brand restructuring and the localization is also the basic means of international marketing, so, how about violations of the interests of the nation?
The author thinks that, at least for now, to take strict standards on national economic security, without considering the "national interest" factors.This is because the "national interest" in the case of difficult to define, on the other hand, because of unreasonable resistance caused by the abuse of national economic development but the effect is far greater than the security effect.In M & A, can be based on the anti-monopoly Committee, set up the national economy security and industry security experts leading group, specializing in political layer facing the threat of foreign mergers and acquisitions or mergers and acquisitions may examine the threat to national economic security and industrial security: M & A behavior whether to limit competition, seek to monopolize the market; whether the suppression of China's emerging industries or potential of our infant industries repressive tendencies; M & a party whether the source of funds and foreign capital are related or the control of foreign governments, to ensure the safety of our economy.
(three) the establishment of economic security review procedures
Foreign M & A review of economic security of anti-monopoly is only a part of the executing organ function, namely to M & a supervision and previous, static, this is also the current "M & a rules" has clear part.But for the merger and acquisition does not reach the monopoly control standards defined by market turnover, market share, business amount or the capital scale, after the transaction with the operation reached or exceeded the corresponding monopoly control standards, who should, through what way to regulatory and legal sanctions, a serious lack of.The author thinks that the legal regulation of foreign capital merger and acquisition of anti-monopoly should not only stay in the suspected monopoly review stage, but should be on after the merger of enterprises operating state, continuous, dynamic behavior of antitrust economic safety supervision, to form an effective anti-monopoly regulation.And after the merger of enterprises regularly report, has achieved the real-time supervision.
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