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April 17, 2013 10:50 am
As Chinese regulators review global deals, Beijing is increasingly taking national interest and industrial policy into account rather than considering the deals strictly on antitrust grounds, a shift highlighted by the far-reaching conditions placed on Glencore’s $64bn takeover of Xstrata.
Lawyers say that change of focus sets the stage for more aggressive rulings from Beijing, particularly in the resources sector.
China’s Antimonopoly Bureau of the Ministry of Commerce is one of the world’s youngest and least understood regulators, and the ruling on the Glencore-Xstrata deal – conditions for which run to some 15 pages – represents its most detailed to date.
The ruling is being scrutinised for what it means for other global deals, including the pending acquisition of US grain company Gavilon by Japanese trading house Marubeni, which has been delayed by at least six months as it awaits Beijing’s blessing.
China’s conditions on Glencore-Xstrata are more far-reaching than those of other antitrust regulators. As part of the conditions Glencore has agreed to sell a major copper mine in Peru, and Glencore-Xstrata will guarantee a certain supply of copper ore to China under annual contract prices over the next eight years.
The stipulations are unusual because from an antitrust perspective, the companies’ combined market share in China is relatively small: in copper ore, they accounted for 17.8 per cent of China’s imports in 2011, below the typical 30-35 per cent threshold for European or US antitrust action.
“This is extremely low for a market threshold,” says one antitrust lawyer, speaking on condition of anonymity. “This case is about China securing access to resources at a fair price; it has nothing to do with antitrust.”
China is the world’s biggest consumer of copper and relies on imported ore to feed its smelters and produce the red metal used in everything from air conditioners to electricity grids. Glencore accounts for about 30 per cent of the freely-traded copper ore globally, though its market share is smaller in China.
Lawyers say Chinese ministries and industry groups are able to influence the antitrust process, resulting in rulings that reflect not just antitrust concerns but also China’s own industrial policy aims and its concerns over access to natural resources.
“Mofcom’s antitrust group is less independent than its counterparts in other jurisdictions,” says Lester Ross, partner at law firm WilmerHale, pointing out that China’s economic planning ministry and mainland companies are also involved in the consultation process. That is not unusual in global antitrust practices, but Mofcom’s relatively weak political status means other ministries and vested interests are able to have a significant say in outcomes.
“What China is seeking to do [with the Glencore-Xstrata ruling] is to make some assets available for purchase, presumably by Chinese companies, and also to exert some price pressure on a certain portion of sales of resources to China,” he adds.
For the next eight years, Glencore and Xstrata will sell China a minimum amount of copper concentrate annually, at a level set each year by Chinese regulators in correlation with the production levels of Glencore and Xstrata. The minimum this year will be 900,000 tonnes, equivalent to Glencore and Xstrata’s average copper sales to China the previous two years.
The stipulation that a certain portion of those sales must be done under annual contract prices suggests Beijing is keen to encourage a partial return to the annual contract system that once defined global commodities markets such as iron ore. The annual contract system under which the key steelmaking ingredient was sold to China fell apart in 2008 when Chinese buyers walked away from contracted values, and iron ore sales now are based on daily spot prices.
Veronica Lockyer, antitrust lawyer at Orrick in Shanghai, says Chinese regulators are particularly concerned about global deals in raw materials, energy and agricultural commodities – sectors Beijing considers key to national security.
“There are factors that Mofcom has to consider that are not factors that would ordinarily be considered in an antitrust process,” she adds, such as industrial policy and resources security.
Susan Ning, partner at law firm King & Wood Mallesons in Beijing, said: “The decision itself is extraordinary in the way it provides so much detail. They have done a very thorough study of the case.”
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