Our Mongolian lawyers have encountered an unusual number of inquiries regarding Mongolian competition and anti-monopoly issues in the past few months. The scenario below takes a looks a common situation found in Mongolian trade.
Let’s assume that multinational company A currently sells to several Mongolian counterparties (Supplier Customers) who have a product import permit. Under the terms of sale, title passes to the Mongolian counterparty before the product is imported on either the Russian or Chinese border.
Mongolian wholesale client (Company B) proposes a profit-sharing agreement whereby Company B will Purchase products from Company A for purposes of:
- storing product in Company B’s facilities and reselling to the other Supplier Customers within Mongolia; and
- selling to wholesale clients provided that they are not already existing customers of the Supplier Customers.
In this scenario Mongolian Competition Law does not apply to the company A. The Mongolian Competition Law does not apply to business entities which are not registered in Mongolia and are operating outside of its borders. Since the proposed transaction contemplated by the agreement would have company A deliver the products to the purchaser outside of Mongolian territory, the provisions of the Competition Law would not be applicable.
In our view, Company A and B would not be forming a monopoly because the transaction is cross-border, and A is not a “business entity” within the meaning of the Competition Law.
Company B only occupies approximately 1% of the domestic market for sale and supply of certain products. Accordingly, since it does not occupy a “dominant position” in Mongolia’s market (defined as a party which sells or produces 1/3 or more of a certain type of goods), the prohibitions in Mongolia’s Competition Law with regard to monopolistic activities would not be relevant to its operations.
With regard entering into agreements and monopolies, the following activities are prohibited under the Mongolian Competition Law:
- mutually agreeing to fix prices of products;
- dividing markets by location, production, services, sales, name or type of products or consumers;
- restricting the production, supply, sale, shipping, transportation and market accessibility of products, investment, technical and technological renovation;
- participating in competitive tender or bid auction or activities procuring goods, works or services by state and local funds having in advance agreed on the price, other conditions and criteria of products;
In addition, the following agreements or entered between business entities shall be prohibited where they contradict the public interests or create circumstances restricting competition:
- refusing to establish economic relations without economic or technical justifications;
- restricting sales to or purchase by third parties of products;
- collectively refusing to enter into agreements or negotiations which have significance for competition;
- preventing competitors from joining organizations with the purpose of running their businesses profitably;
Mongolian business entities are prohibited to enter into agreements with effects as described above.