On 13 August, the Chinese Ministry of Commerce (MOFCOM) conditionally approved the proposed acquisition of an additional 33.6 per cent stake in Niuhai Holdings by American retailer Wal-Mart. The notification was filed on 16 December 2011 but only accepted as complete two months later, on 16 February 2012, at which time the review procedure formally began. On 16 March, considering that the transaction could have restrictive effects on competition in the Chinese B2C online retail market, MOFCOM decided to open a second-phase review. The review was extended by an additional 60 days on 13 June after MOFCOM obtained the parties’ consent to do so.
According to MOFCOM’s announcement, as a result of the transaction Wal-Mart would increase its stake in Niuhai Holdings from 17.7 per cent to 51.3 per cent. Niuhai Holdings controls Yishiduo Electronic Commerce, which operates Yihaodian. Yihaodian is the largest online supermarket in China. It is active through both direct sales and through “telecommunications value-added services”. MOFCOM’s announcement is unclear on this point, but these regulated services appear to be relate to the operation of an online marketplace, where independent suppliers can find buyers. These services can only be operated under licence from the Government.
In its competitive analysis, MOFCOM identified Wal-Mart as a key player in the market for supermarket chains in China and worldwide. MOFCOM was concerned that Wal-Mart would leverage its competitive advantages (such as its sophisticated system of warehousing and distribution, extensive supply channels and strong brand name) to the newly acquired online retail business, which relies heavily on logistics and service systems. MOFCOM’s investigation revealed that if the merged entity was to enter the “telecommunications value-added services market” (i.e., the operation of an online marketplace) through Yihaodian, it would have the ability to quickly expand its business and achieve a dominant position through its increased bargaining power.
To address the above concerns, MOFCOM approved the transaction subject to the condition that Niuhai Holdings should limit its acquisition to Yishiduo’s online retail business and should not use that platform to provide “telecommunications value-added services”. While the conditions set out in the announcement are not entirely clear, this may effectively limit Wal-Mart’s use of Yihaodian as its own online retail channel, preventing it from continuing its operations as an online marketplace. Interestingly, MOFCOM specifically prevents Wal-Mart from investing in Yishiduo’s “telecommunications value-added services” through a variable interest entity, a structure often used by foreign investors in China to gain influence over a business while only acquiring a minority interest.