By Susan Ning, Zheng Ziqing and Angie Ng
At the brink of the New Year, it is timely to take stock of the antitrust merger control work we've undertaken for our clients and provide some observations re the merger control regime in China:
Continue Reading...By Susan Ning and Ding Liang
On 29 December 2010, the National Development and Reform Commission (NDRC) issued rules entitled Procedural Rules on Administrative Enforcement of Anti-price Monopoly (procedural rules). These procedural rules provide further guidance as to how Chapter 6 of the Anti-Monopoly Law (AML), entitled "Investigation of Alleged Monopoly Acts" operate. Chapter 6 of the AML outlines the investigation powers of the antimonopoly authorities.
This is the first time that the NDRC has issued any procedural rules in respect of the AML.
Continue Reading...By Susan Ning, Ding Liang, Shan Lining and Angie Ng
On 29 December 2010, the National Development and Reform Commission (NDRC) issued rules entitled "Rules on Anti-Price Monopoly"(rules). These are the first rules to provide further guidance in relation to the price-related prohibitions of the Anti-Monopoly Law (AML). [Note: The NDRC issued these rules in draft form for the first time in September 2009.] The rules will be effective as of 1 February 2011.
Broadly, the rules expand on and provide further guidance to the prohibitions against anticompetitive agreements and against an abuse of dominance within the AML.
By Susan Ning, Huang Jing and Angie Ng
We often receive queries from clients in relation to whether group restructures need to be notified to the Ministry of Commerce (MOFCOM) for antitrust merger control clearance.
This article provides some general guidance as to when a group restructure needs to be notified to MOFCOM for antitrust merger control clearance.
Continue Reading...By: Richard Wigley ofKing & Wood 's Intellectual Property Group
Perceptions (and Misperceptions) of IPR Lawsuits in the P.R.C.
There is no question that many foreign companies operating in the People's Republic of China struggle with the protection of their intellectual property rights ("IPR"). The concerns of companies with protecting their valuable IPR in a developing country such as the P.R.C. are legitimate and serious. Though many of the executives and attorneys of these companies may view themselves as "old China hands" and have many years of experience in fighting to protect their IPR in the P.R.C., many more are relative newcomers to China and their views of IPR protection are shaped by not only their own experience, but by the perceptions of others, which may or may not be valid. For instance, some overseas business executives or legal counsel on occasion may voice their view that pursuing litigation as a foreign firm against a P.R.C. company over an alleged infringement in a P.R.C. court is a waste of time and money, as either they have little chance of prevailing, or, if they should prevail, the damages awarded will be so small as to not provide any substantive deterrent. Though every alleged infringement is case-specific, it is, however, useful to separate the perceptions (and misperceptions) from the realities of foreign-related IPR litigations in the P.R.C.
Continue Reading...1. 介绍
英国《2010年反腐败法案》（c.23）（以下称“《法案》”）于2010年4月8日获得御准并将于2011年4月生效。[1]
《法案》规定的两项一般性罪名取代了普通法项下以及之前英国成文法项下的腐败相关罪名[2]（这些法律规定因缺乏明晰性并且使用术语不一致而广受诟病[3]）。第一项罪名包括在诱导或者酬谢不当行为的意图下提供、许诺或者给予好处[4]（行贿罪），第二项罪名涉及要求、同意接受或者接受不正当的好处或者不当行为的引诱或酬谢[5]（受贿罪）。《法案》同时创设了一项独立的罪名——贿赂外国公职人员罪以及另一项新的罪名，即商业机构未能预防贿赂罪。[6]《法案》确保反贿赂法律平等适用于任职于公共机构以及被选出的私人机构的人员的贿赂行为，且不在两者间存在任何歧视待遇。[7]
Continue Reading...By: Ariel Ye and James Rowland
I. Introduction
The UK Bribery Act 2010 (c.23) (the “Act”) received royal assent on 8 April 2010 and will come into force in April 2011.[1]
The Act replaces the offences of bribery at common law and under earlier UK statutes[2] (which received much criticism for their lack of clarity and use of inconsistent terminology[3]) with two general offences. The first covers the offering, promising or giving of an advantage with an intention to induce or reward improper conduct [4] (active bribery) and the second deals with the requesting, agreeing to receive or accepting of an advantage that is improper or is an inducement or reward for improper conduct[5] (passive bribery). The Act also creates a discrete offence of bribery of a foreign public official and a new offence where a commercial organization fails to prevent bribery.[6] The Act ensures that the law against bribery applies equally to the bribery of persons exercising public and selected private functions without discriminating between the two.[7]
Continue Reading...背景：
在中国，较高的知识产权侵权率在近些年越来越受到中国境内外知识产权权利人的关注。尽管中国仍然是一个发展中国家，但是如此高的侵权率还是在一定程度上反映了中国经济体制存在的问题，这些侵权现象恰恰是中国经济发展的绊脚石。
Continue Reading...By Richard Wigley of King & Wood's Intellectual Property Group
Background on the Campaign
High rates of intellectual property rights (“IPRs”) infringement in China have in recent years been of increasing concern to foreign and domestic rights holders alike. Though, as China is a developing country, such high rates of infringement are, arguably, to some extent an economic structural issue, these infringements are seen as an impediment to China’s economic growth prospects. Furthermore, China has an obligation as a signatory of TRIPs (Agreement on Trade-related Aspects of Intellectual Property Rights) to maintain an effective regime for the protection of IPRs.
Continue Reading...By: Susan Ning and Ding Liang
On 22 December 2010, the Minister of Commerce Chen Deming stated in his annual working report at the 2010 National Commerce Work Conference that the Ministry of Commerce (MOFCOM) intends to combine the following processes: (a) administration of foreign investment; (b) anti-monopoly merger control review; and (c) national security review from next year.
According to Minister Chen's report, the main objective in combining the above mentioned processes is to "protect the security of domestic industries".
It is not clear how the processes in (a) to (c) as mentioned above will be combined or integrated. This article provides a brief overview of how the processes set out above are currently being conducted.
Continue Reading...Interview with Mark Schaub, a partner with King & Wood's Corporate Group.
Gasgoo.com: Mergers and Acquisitions (M&A in China) is not simply win-win for owners and companies. It’s also about win-win or win-lose for local governments. For example, small manufacturers provide jobs, taxes and gifts to local officials. If a larger manufacturer acquires a small one, jobs will move along with it. This is the main reason the industry is so spread out. No one wants to let go of jobs in their district. So what’s your opinion on dealing with the local government in an M&A case?
Continue Reading...By: Susan Ning and Shan Lining
On 20 December 2010, the Beijing Second Intermediary People's Court (the Court) issued a first instance ruling on an Anti-Unfair Competition Law dispute between Baidu (the largest Chinese search engine provider) and 360 (a large security software provider). The Court ruled in favor of Baidu, ordering 360 to pay damages amounting to RMB385,000.
At the time of writing, we were unable to obtain a copy of the first instance judgment – thus, this article sets out the facts of the case, based on public or press reports:1
Continue Reading...By: Susan Ning, Zheng Ziqing and Angie Ng
On 18 December 2010, Mr Shang Ming (Chief of the Antimonopoly Bureau, of the Ministry of Commerce or MOFCOM) delivered a speech at an academic conference entitled "International Symposium on Enforcement of China's Anti-Monopoly Law in the New Economy" held at Beijing's People's University.
During Mr Shang's speech, he revealed the following facts and figures about MOFCOM's merger control regime:
Continue Reading...By: Stephen Nelson and King & Wood's Tax Group
Recently, China clarifies that individuals shall be liable for individual income tax (‘IIT’) on income derived from assignment of trade-restricted shares. According to the Supplementary Notice on Individual Income Tax Issues regarding Transfer of Trade-Restricted Shares (Caishui [2010] No. 70) (“Circular 70”), “trade-restricted shares” refers to shares which have been locked up during initial public offerings and notably, the following shares would be classified as trade-restricted shares:
Continue Reading...By: Susan Ning, Shan Lining and Angie Ng
On 17 November 2010, the National Development and Reform Commission (NDRC) organized a "price monopoly" workshop in Chengdu to take stock of: (a) developments in relation to price related breaches of the Anti-Monopoly Law (AML); and (b) developments in relation to provincial level price authorities and their enforcement of the AML (see our article entitled "Provincial Price Authorities and the AML" dated 20 November 2010.[1]
Continue Reading...By: Yi Zhang, King & Wood's Securities & Capital Markets Group
Introduction
Legislative research on industrial investment funds started in early 2000. Since the official administrative regulations regarding such funds have not yet been publicly released, the government has been concurrently implementing pilot projects and draft administrative regulations on the subject.
During the pilot period, the National Development and Reform Commission (NDRC) drafted the Administrative Regulations on Industrial Investment Funds, later changing the name to the Administrative Regulations on Private Equity Funds in order to make them applicable to the entire private equity fund industry.
Continue Reading...
By: Kenneth Y. Choy of King & Wood's Hong Kong office and Antitrust & Competition Group
Tai Po is a traditional village located in the northeastern part of the New Territories in Hong Kong. Its historical relics, old temples, quaint fishing village and natural scenery make it a popular destination for both tourists and local residents alike.
The Hong Kong government began building up Tai Po in the late 1970’s, transforming it from a sleepy fishing community into a bustling new town of 300,000. In the last decade, the Government decided to tear down the old to make way for new facilities in the area. As part of the development, the old Tai Po Temporary Market which had housed many small cooked food stalls was replaced with a brand new complex. Stallholders who operated the cooked food stalls were vacated by the Food and Environmental Hygiene Department, the governmental agency that manages cooked food markets and relocate to the new facility.
Continue Reading...By: King & Wood's Insurance Group
This August, the Chinese Insurance Regulatory Committee disclosed its provisional measures on equity investments made by Insurance Funds (“Equity Investment Measures”). With the introduction of the new PRC Insurance law in October 2009, domestic insurance companies have begun making equity investments into private companies. The new Equity Investment Measures lay out a detailed framework outlining the ways in which insurance companies may participate in direct and indirect equity investment activities, including investments in private joint-stock companies and LLCs.
Continue Reading...By: Susan Ning, Shan Lining, Liu Jia and Angie Ng
On 10 December 2010, the State Council published and enacted a set of revised penalty regulations[1] (vis-à-vis the Price Law 1997).
Broadly, the penalties set out in these revised penalty regulations are more severe than the previous version.
Of note is the fact that there is a new Article 5 which outlines more severe and specific remedies in relation to breaches amounting to price-fixing. In addition, the new Article 19 introduces criminal sanctions for breaches of the Price Law 1997 which severely disrupt the market order in China.
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