d. Financial reports of the undertakings concerned in the previous year that have been audited by accounting firms; ande. Other documents and materials required by the MOC.
Article 11 of the Notification Rule also encourages but not compels the notifying parties to provide any other documents and information which will facilitate the AMB to grant the approval to the concentration, such as the opinions of local people’s governments and competent authorities (“the Opinions”), and reports supporting concentration agreements etc (“the Reports”). In the Draft Notification Rule, the Opinions and the Reports are in the list of documents essential to be submitted to the AMB. The changes of the expression in the final Notification Rule do not mean that the notifying parties can ignore the Opinions and the Reports. To the most extent, the Opinions and the Reports will contribute a lot to obtain the appraisal from the AMB. The AMB may also require the notifying parties to do so if necessary in accordance with item e above.
The AMB has published some guidelines before the promulgation of the Notification Rules in order to instruct the notification. The Explanation reiterates that the detailed requirements on the content of the submitted documents have been stated in the Guidelines on the Documents Submitted by the Undertakings in the Concentration (“the Guidelines”). In this regards, the notifying parties need to refer to the guidelines for the detailed requirements on the documents to be submitted.
2) Follow-up submission in the examination stageAfter the submission of those documents listed in above 1), the undertakings concerned may also provide the statements and defenses in connection with those submitted documents by post or fax to the AMB. It means that further interpretation and explanation may be required by the AMB in their examination stage. On the other hand, the notifying parties may also provide the follow-up submission if they think it is necessary for their expected successful appraisal. In both cases, the AMB should listen to those followed statement and defenses. But how much it will affect the examination and decision of the AMB will completely depends on the attitude of and communication with the AMB.
3) Format and languageThe submitted documents shall be in hardcopy and softcopy (CD) and compiled in a reasonable order for convenient to refer to. All the documents must be provided in Chinese. The original copies are also required to be submitted if they are in foreign languages. If the submitted documents are duplicates, photocopies or faxed copies, the original copies thereof shall be provided to the AMB for check.
4) ConfidentialityIn order to define the confidentiality obligation, the AMB requires the notifying parties to provide two versions of the documents, i.e. one public version and one non-public version, and highlight the business secrets and the other confidential information. It is not clear whether the AMB will require the notifying parties to give reasons for the confidentiality. In the Explanation, the AMB pointed out that the public version should contain essential information which is enough for the third parties to evaluate the effect of concentration on the competition. It means that the AMB will evaluate whether those information defined as business secrets by the notifying parties are reasonable.
The Notification Rules also says that both the AMB and the notifying parties shall have the obligation to keep the business secrets and the other confidential information disclosed in the pre-consultation and examination stages in confidentiality. But it does not make sense to put the notifying parties to take this obligation since they have the right to dispose those business secrets and the other confidential information which they have identified as confidential.
