Where the concentration consists of the acquisition of parts of one or more undertakings that have two or more concentration transactions within two-year period, those transactions shall be regarded as one concentration transaction which should be notified to the AMB if the aggregate turnover of all the transactions trigger the above thresholds. This is the interpretation of the AMB to prevent the undertakings from the avoidance of the approval of the AMB by splitting the transaction.

　　2. Concentration and Control definitions(1) ConcentrationThe Notification Rule re-states the control circumstances described in the AML as the following:

　　1) The merger of undertakings;2) The acquisition of control of the other undertaking(s) by one or more undertakings through purchase of equities or assets; or3)　　 The acquisition of control of or being able to confer decisive influence on the other undertaking(s) by one or more undertakings through contract or any other means.

　　In the Draft of the Notification Rule for public consultation on 20 January 2009 [4](“the Notification Rule Draft”), the MOC has added that it will be regarded as the concentration in Article 20 of the AML if two or more undertakings jointly set up a new joint venture. The deletion thereof in the final Notification Rule shows China’s puerility in the legislation and implementation of the anti-monopoly law. On the other hand, the undertakings in the market may benefit from this with a meticulously designed structure.

　　(2) ControlThough the AMB has listed the definition of “control” in the Notification Rule Draft, it was ｄｅｌｅｔｅd from the final Notification Rule. In the Notification Rule Draft, the AMB defines that “control” means:

　　1) The acquisition of more than 50% voting equities or assets of the other undertaking(s);2) While not being holders of the above equities or assets, being able to decide the appointment of one or more directors and the core management officials, the financial budget, operation and distribution, pricing, major investment and the other management and operation policies, by the means such as acquisition of the equities or assets and contracts, etc..

　　In accordance with Mr. Shang Ming, the Director General of the AMB, said at a seminar held by Renmin University on 19 December 2009 (“the Seminar”) “…control, which is involved with the Company Law, the Securities Law, the AML and many other laws, is a complicated concept. ……〔Control〕 needs further research. …… On the other hand, we also hope that “control” as a major problem involved in the AML is better to be solved at the senior level of laws, such as the regulation issued by the State Council. We will promote the promulgation thereof.”[5]　As the implementation authority of the concentration, the AMB must urgently anticipate the clarification of the definition of “control” since it is closely related to all decisions on the concentrations. Without “control” definition, the AMB can not find the corresponding legal basis for its decision when the “control” needs to be elaborated. As Mr. Shang said “before the promulgation 〔of the regulation by the State Council〕, we will decide on the principle of case by case. The “control” problem will be solved through the pre-consultation.”[6]　This will cause the uncertainty for the undertakings concerned in the concentration since there is no definite and unified elaboration on “control”. The “pre-consultation” with the AMB may give some hints to the undertakings concerned, but it is difficult for the undertakings to argue if they have different views due to the lack of definition of “control” at the level of law or regulation. Moreover, the principle of case by case also reflects that the AMB has no unified rules to abide by when they analyze the “control” problem in the notified concentration. The discretion held by the AMB will surely affect the concentration deals, which also leaves gaps for the undertakings concerned to liaison with the AMB and the other related authorities for successful nodding decision on the concentration. At this stage, we do not know when the NPC or the State Council will input the “control” to its legislation schedule.