It remains uncertain, however, whether and how frequently SAMR will impose individual liability in future SAMR enforcement actions. It provides that individuals who are directly responsible for creating monopolistic agreements may face fines of up to RMB 1 million (approximately USD 156,000). Notably, the Revised Draft Amendment imposes individual liability and monetary penalties on infringing parties’ legal representatives. Although it is unclear whether SAMR would apply such a fine, the Draft Amendment underscores an enhanced commitment to compliance with premerger notification requirements. Under the Revised Draft Amendment, SAMR can impose an aggravated fine of up to two to five times the statutory fine when it finds that the party’s merger violation was “extremely serious,” “caused extremely adverse impacts,” and “resulted in extremely serious consequences.” Thus, under the Revised Draft Amendment, an infringing party could face fines as high as 50% of its revenue in its last fiscal year. The Revised Draft Amendment goes even further. Under the Initial Draft Amendment, the statutory maximum fine for merger control violations was 10% of a company’s revenue in its last fiscal year, which already reflected a dramatic increase from the AML’s current maximum fine-RMB 500,000 (approximately USD $79,000). One of the Revised Draft Amendment’s most significant changes is the increase in maximum penalties for “serious” merger control violations, including failure to notify transactions and gun-jumping violations. Although there is no official timeline, we expect that the Revised Draft Amendment will be formally adopted at some point in 2022. This amendment is the first proposed major revision to the AML since it became law in 2008. This draft of the AML amendment (the Revised Draft Amendment) follows the State Administration for Market Regulation’s (SAMR) initial draft (the Initial Draft Amendment), first released in January 2020 (our analysis on the Initial Draft Amendment can be found here). On October 23, 2021, the Standing Committee, China’s national legislature, published a second draft of an amendment to China’s Anti-Monopoly Law (AML). Updates to the AML and SAMR regulations A.
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