Clean Development Mechanism: Untapped Potential
Under the United Nation's Framework Convention on Climate Change (UNFCCC), “developed country Parties should provide new and additional financial resources to support the transfer of technology and take all practical steps to promote, facilitate and finance the transfer of, or access to, environmentally sound technologies and know how to developing country Parties.” However, a UNFCCC report revealed that a large portion of developing nations do not take advantage of CDM projects to import technology.
As long as technology transfer from developed countries is a convenient low-cost means for China to reduce GHG emissions, why doesn't China have more CDM projects that involve technology transfer? [continue reading to see our analysis]
Wang Rui, Partner, International Trade
Continue Reading...Intersect Between Intellectual Property Law And Competition Law
At first glance, the goals of intellectual property law and competition law might appear to conflict. IPR owners are granted statutory rights to control access and charge monopoly rents to others for use of their rights. IPR owners may also use terms of IPR licences to regulate downstream activities of their distributors, such as imposing exclusivity, territorial restraints and price restraints. Competition law, on the other hand, is directed at curtailing such market power which may prove harmful to economic welfare.
However, IP laws and competition laws can also be seen as complementary rather than antagonistic. Both laws share the same fundamental goals of enhancing consumer welfare and promoting innovation. According to the United States (US) Department of Justice (DoJ) and the Federal Trade Commission (FTC) :
“…[competition] laws protect robust competition in the marketplace, while intellectual property laws protect the ability to earn a return on the investments necessary to innovate. Both spur competition among rivals to be the first to enter the marketplace with a desirable technology, product, or service.”
While an IPR may confer a “legal monopoly” over a product, process or work, it does not necessarily confer an “economic monopoly”. Further, while an IP license may well confer restraints on licensees (such as territorial restraints) with respect to a specific product, process or work, there may be sufficient actual or potential close substitutes that constrain the exercise of market power by the IPR owner.
Despite the view that the goals of IP and competition laws are complementary, difficult questions can arise when competition law is applied to specific activities involving IPRs.
A. China's AML: Article 55
The IPR provision in the AML is set out in Article 55:
“This law shall not apply to the conduct of operators to exercise their intellectual property rights in accordance with the laws and relevant administrative regulations on intellectual property rights; however, this law shall apply to the conduct of operators to eliminate or restrict market competition by abusing their intellectual property rights.”
Article 55 exempts conduct which amounts to an exercise of IPRs so long as: those IPRs are exercised in accordance with the provisions of laws and administrative regulations relating to IPRs; and the conduct does not amount to an abuse of IPRs by eliminating or restricting competition.
The Article 55 approach is very similar to the approaches in Australia and Canada. In both these countries, there has been debate about when the IPR owner is only fairly exercising their inherent rights in the IPR or is trying to achieve something more which has an anti-competitive outcome. Experiences in both countries show that this dividing line can be difficult to draw.
[continue reading for further analysis]
* Angie Ng is a graduate in the Competition and Regulatory Group at Gilbert + Tobin in Sydney, Australia.
** Ding Liang is of counsel for King & Wood's International Trade Group in Beijing.
*** Peter Waters is a partner in the Competition and Regulatory Group at Gilbert + Tobin in Sydney, Australia.
King & Wood established a strategic alliance with Gilbert + Tobin in November 2007.
Renewable Projects in Hong Kong may Lead to Additional Reward?
1.Introduction
On 6 June 2008, the Government of the Hong Kong Special Administrative Region (the “HKSAR”) announced the “Arrangements for the Implementation of Clean Development Mechanism (“CDM”) Projects in the Hong Kong Special Administrative Region” (the “Implementation Arrangements”). The Implementation Arrangements have been developed following consultations between the National Development and Reform Commission (“NDRC”) of
By Andrew Tan
Partner Arculli Fong & Ng (in association with King & Wood, PRC Lawyers)
Anti-ambush Marketing Measures for the Beijing 2008 Olympic Games
As consideration for obtaining Olympic marketing rights, the official sponsors have contributed considerable funds and goods to the Olympic Games. The strong support of sponsors is crucial to the successful staging of every edition of the Olympic Games. As such, the International Olympic Committee (“IOC”) views the protection of the sponsors’ rights as an important aspect in the preparation and organization of the Olympic Games. The Government of the Beijing Municipality and Beijing Organizing Committee for the Games of the XXIX Olympiad (“BOCOG”) also solemnly have covenanted in the Host City Contract and the Marketing Plan that they will take all necessary measures to prevent and combat ambush marketing in any form...
By
Chinese Law on Product Recalls- A Work in Progress
Recent issues regarding Chinese products have focused on the gaps remaining in the law. However, the gaps are quickly closing. Product safety has become a top priority for China. Chinese authorities have streamlined the legislative process for product recalls at all levels...
By Li Yongmei King & Wood’s Domestic Litigation & Arbitration Practice
Continue Reading...Calculating Late Payment Breach Damages
Unclear provisions have frequently caused liability disputes for late payment damages. Clearly a non-breaching party may claim damages for late payment. Yet, opposing parties have often advanced differing methods for calculating damages depending on which method provides a more favorable outcome. In the past, courts also proposed differing principles for deciding cases. This lack of uniformity often led to confusion.
By Cheng Shigang, Associate in King & Wood's Domestic Litigation and Arbitration Group.
New Technology Import Regulations May Cause Headaches for the Unprepared
Two sets of new measures have been issued in June 2008 (namely Measures for the Administration of Prohibited and Restricted Technology Import and Measures for the Administration of Import and Export Contracts Registration) which are likely to have a material, practical affect upon technology licenses and transfers to and from
The measures are a mix of devolution (i.e. the regulations delegate responsibility down to regional Bureaux of Commerce); increased regulation and supervision on the one hand but relaxation in other regards.
By Mark Schaub, Partner
Continue Reading...Interplay of Non-Compete Covenants under the PRC Anti-monopoly Law
A non-compete clause prohibits one party from competing in the same type of business as the other party for a specified period. The non-compete clause is usually termed "covenant not to compete", "restrictive covenant", or "non-compete clause" and are treated with suspicion by the Anti-Monopoly Enforcement Agency.
As
According to Article 13 of the AML, monopoly agreements are agreements, decisions or some concert of action that eliminates or restricts competition. If an agreement reached between two or more operators containing a non-compete clause has the object or effect of eliminating or restricting competition, then it will be considered a monopoly agreement under the AML.
It is apparent that non-compete clauses protect the interests of parties in different types of agreement. Since these clauses involve the balancing of interests between promoting competition and protecting the interests of suppliers, retailers and investors, their interpretation and application can be quite complex. It will be interesting to see how the interplay between non-compete clauses and the AML unfolds.
* Ding Liang is of counsel to King & Wood's International Trade Group in
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