一、基本情况回顾
根据中国加入世界贸易组织议定书，其他WTO成员可以在15年之内，针对中国采用反倾销调查时，可以认为中国不具有“市场经济地位”。
欧盟在1998年修改《反倾销条例》之后，将中国视为“市场转型国家”，即在总体上不承认中国是“市场经济国家”的同时，对于特定条件的公司给予“市场经济地位”。一般而言，获得“市场经济地位”的公司在反倾销调查当中按照应诉公司提供的信息来计算倾销幅度，通常结果会大大低于没有获得“市场经济地位”的公司。自此以后，中国公司积极地在反倾销调查中申请市场经济地位。截至2010年12月31日，欧盟针对中国一共发起了99起反倾销调查。根据我们的统计，一共有94家公司分别在32起反倾销调查当中获得了“市场经济地位”。
Continue Reading...By Liu Xinyu and Gao Xiaorui King & Wood's International Trade Group
Improper commodity classification in customs declaration may cause different legal liabilities. This article will begin the analysis with two cases.
Case 1: A large-scale foreign-investment enterprise ("Enterprise A") imported 72.6 tons of ethylene powder from Germany, and made a customs declaration in the name of ethylene powder with a commodity code ("HS code") of 29,012,100. Later, the customs office extracted samples from the declared goods for inspection. The laboratory identification report issued by the customs laboratory center revealed that the materials were actually a type of polymer with the main ingredient being vinyl acetate, and the proper corresponding HS code was 39052900. Through further investigation, the customs office found that Enterprise A had imported the same materials as "ethylene powder" three times. The customs office finally determined that Enterprise A's acts constituted false declarations, and imposed administrative penalties on Enterprise A in accordance with relevant laws.
Case 2: According to a news report, the merchandiser of a well-known foreign-funded enterprise ("Enterprise B"), when scrutinizing Enterprise B's former declaration materials for imported raw materials, found that the beginning of the HS code on the commercial invoice was 3302 rather than 1302, the correct beginning of HS code for the imported raw materials. Imported materials with HS codes 1302 and 3302 were levied different customs duties of 20% and 15%, respectively. HS code 1302 was the correct coding for imported materials by Enterprise B and the merchandiser was aware of the fact. However, Enterprise B continued to use the original commodity code when filing customs declaration for the imported materials, and carried out this misconduct for the next 30 months. Finally, the customs anti-smuggling department discovered Enterprise B's acts and determined Enterprise B had evaded customs duties amounted to over RMB 1 million. Finally, a lawsuit was instituted by the competent procuratorate before the courts.
Continue Reading...报关商品归类错误可能会引起不同的法律责任，这里先举两个案例:
案例一：某大型外商投资企业（“A公司”）从德国进口72.6吨乙烯胶粉。A公司在向海关申报该批货物的名称为乙烯胶粉、货物商品编码（“HS编码”）为29012100。此后，受理申报的海关提取了该票乙烯胶粉的样品送检，经海关化验中心出具的化验鉴定书显示，该批货物为以醋酸乙烯为主要成分的聚合物，归类参考意见为HS编码：39052900。同时，经海关调查A公司此前曾以同样方式进口乙烯胶粉合计三票。最终海关认定A公司的行为构成申报不实，根据相关规定对A公司给予行政处罚。
案例二：据有关媒体报道，某知名外资企业（“B公司”）的采购人员在审查本公司向海关申报进口原料的有关文件时，发现了国外供应商提供的商业发票中HS编码为1302开头，这一编码当时对应的税率为20%，而B公司进口时向海关申报所用的HS编码为3302开头，该编码当时对应税率为15%。据海关认定，虽然采购人员知道以1302开头的HS编码才是B公司实际进口货物的正确编码，但B公司仍继续使用原来的商品编码向海关伪报这批货物，并在此后的近30个月的时间里沿用了这一错报HS编码。最终，查获该行为的海关缉私部门认定B公司偷逃应缴税款总计100多万元，涉嫌构成走私普通货物罪，并由检察院向法院提起公诉。
Continue Reading...By Zhang Shouzhi Li Xiang and Zhang Mei King and Wood's International Trade Group
This article continues to discuss Legal Issues in Contracts for Sale of Large-sized Complete Set Equipment. The first part of this article was published on Chinalawinsight on October 2011.
Because large-sized complete set equipment are often composed of multiple parts, it is customary for the manufacturing and delivery of equipment to occur in conjunction with the assembly sequence. Accordingly, there are multiple deliveries, installations and inspections during the contract performance. The general procedures are as follows:
A. Inspection
The first inspection of the equipment is usually an open-package joint inspection conducted by both parties upon the arrival of the equipment at the destination port. If the package appears intact, yet after inspection the equipment is found damaged, defective, short of quantity or not conforming to the quality standards and specifications, the buyer is entitled to request the seller to repair, replace, or supplement the parts in question or to claim compensation. If problems are found to arise from the transportation, the buyer's claim should be made against the carrier or insurance company. As an extra precaution, the buyer sometimes dispatches staff to do a preliminary inspection at the seller's factory or at the departure port before loading of the equipment.
Continue Reading...本文分两部分刊登， 2011年10月12日金杜法律博客(Chinalawinsight)刊登的了本文的第一部分。文章第二部分将继续对《大型成套设备买卖合同中的法律问题》进行解读。
由于大型成套设备通常由多个部分组成，因此往往是按照装配顺序，边生产、边交付。相应地，在合同履行过程中会发生多次交货、安装和验收。从设备交货到验收，通常会经历如下几个阶段：
1、检验
设备的第一次检验通常是在到达目的港后由买卖双方联合进行开箱检验。在包装完好的情况下，如检验发现设备存在损坏、缺陷、短少或不符合质量标准和规格的情况，买方有权要求买方修理、更换、补供或赔偿。如是运输中发生的问题，则需向承运人或保险公司索赔。有时，为稳妥起见，买方也会在设备生产完毕后或发货前，派员到卖方工厂或发货港对设备进行装船前预检。
Continue Reading...by Liu Xinyu and Jing Yunfeng of King & Wood's Corporate group
According to Articles 56 to 58(1) of the Customs Law of the People's Republic of China ("Customs Law")(2), there are three categories where duties may be reduced: statutory duty abatements or exemptions, deductions or exemptions on special goods, and temporary duty reductions or exemptions. "Deductions or exemptions on special goods" refers to goods imported into China that enjoy a reduction or exemption of duties in specified areas and enterprises or for special purposes until the expiration of customs supervision over such goods. Special goods which are subject to reductions or exemptions are divided into many categories according to the region, use of the goods, nature of the trading business and source of funds. According to related regulations, if the imported goods fall within certain product categories encouraged by the government, the foreign investment enterprise can apply for a preferential policy of deduction and/or exemption of duties.
However, in practice, some foreign investment enterprises, being unaware of customs supervision rules, receive penalties from China Customs offices for improper handling of these special goods that are otherwise eligible for reductions or exemptions of duties. Therefore, it is important for foreign investment enterprises to understand the relevant regulations concerning special goods that are eligible for deductions and exemptions.
Continue Reading...根据《中华人民共和国海关法》（《海关法》）（1）第五十六条（2）、五十七条第一款（3）以及第五十八条（4）的规定，关税的减免分为三大类，即法定减免税、特定减免税和临时减免税。其中，“特定减免税货物”是指货物在进口时减征或免征进口关税，进口后只能用于特定地区、特定企业或者特定用途，直至海关监管年限届满后解除海关监管的进口货物。而特定减免税货物又根据地区、货物用途、贸易性质、企业性质和资金来源等税收政策可分为很多种类。其中，根据有关政策规定，外商投资企业进口属于国家鼓励发展的外商投资项目货物时，可申请享受特定减免税优惠政策。
但是，实践中，很多外商投资企业却因对海关监管要求的不了解而违法处置特定减免税货物导致遭受海关的处罚。因此，对于外商投资企业而言，了解特定减免税货物监管的相关规定以及海关在实践中的要求是非常重要的。
Continue Reading...By Zhang Shouzhi Li Xiang and Zhang Mei King and Wood's International Trade Group
As the third-largest trading nation in the world, China's import and export volume increases significantly year by year, among which, certain percentage of transactions relates to import and export of large-sized complete set equipment. Compared with common commodity trading, large-sized complete set equipment trading are much more complicated, involving commercial, technical, legal and financial issues relating to not only commodity trade but also intellectual property protection and services. In addition, large-sized complete set equipment are normally expensive amounting to tens and even hundreds of millions of dollars and such equipment can be crucial for the production and business operation of an enterprise. Thus, any disputes if not resolved successfully may lead serious consequences.
Continue Reading...作为世界第三大贸易国家，随着经济的发展和技术的进步，中国的进出口额逐年大幅增加。其中，大型成套设备进出口占了相当比重。与一般国际货物贸易相比，大型成套设备贸易集货物贸易、知识产权及服务贸易于一体，商务、技术、法律、金融问题互相交织，其复杂性格外突出。加之大型成套设备往往价格昂贵，动辄就以千万美元甚至上亿美元计，对企业的正常生产经营活动至关重要。因此，大型成套设备买卖一旦发生纠纷，不仅法律难点多，而且如果不能妥善解决，后果也将十分严重，故此应当格外予以重视。
结合大型成套设备买卖通常易发生的法律纠纷，重点应关注以下几方面：
Continue Reading...By Meg Utterback and Ding Liang of King & Wood's Cross border dispute resolution Practice
As the United States mid-term elections draw near, we can expect greater protectionist measures from the US government in an effort to appease voters who are demanding an improvement in the US unemployment statistics. One such protectionist measure is the initiation of the recent 301 investigation relating to allegations that the Chinese clean technology and renewable energy sectors are being unfairly advantaged by government subsidies. Almost all countries are subsidizing the renewable sector in one form or another in hopes of easing the world’s dependence on fossil fuels. It seems however that the US has taken umbrage with the extent of Chinese programs supporting the clean technology and renewable energy industries.
Continue Reading...China has issued a raft of measures aimed at moulding its auto industry to meet both the challenges posed by the global economic crisis and possibly even use the crisis to achieve long held strategic government goals. The short term goal appears to be to boost domestic consumption of cars and thereby stimulate the economy. The longer term goals have been previously enunciated in NDRC auto policy, namely consolidate the industry, build some national auto champions and build quality “green” cars. According to The New York Times, China is aiming to become a global leader in manufacturing electric cars.
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The Ministry of Commerce of the People’s Republic of China (“MOFCOM”) made the decision to prohibit the proposed acquisition of China Huiyuan Juice Group Limited by the Coca-Cola Company (the “Transaction”) under Article 28 of the Anti-Monopoly Law of People’s Republic of China (the “AML’). We believe the following three negative influences on competition were the primary considerations taken into account by MOFCOM:
Susan Ning, Partner, International Trade
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Often, when Chinese lawyers deal with foreign-related cases they see the term "attorney-client privilege" in the foreign lawyer issued legal opinions and memorandums. Furthermore, many foreign lawyers would like to know if their communication with the Chinese lawyers they work with is provided the same amount of protection as their communication with their clients.
Black's Law Dictionary defines attorney-client privilege as a client's right to refuse to disclose, and to prevent anyone else from disclosing, confidential communications between him or her and his or her attorney. This privilege prevents attorneys from disclosing their communications with their clients. Furthermore, this protection prevents any other party, including, the attorney from using any information that could be considered "attorney-client privilege" as evidence in a litigation. However, there are exceptions. For example, an attorney has a duty to disclose privileged information if the disclosure is related to criminal activities. The attorney-client privilege was established to encourage honest communication between an attorney and his or her clients. This opportunity for honest communication will reduce the chance that a client will intentionally or unintentionally engage in an illegal activity due to ineffective communication with his or her attorney.
Gui Hongxia and Li Xiang of King & Wood's Dispute Resolution Group
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According to Chinese media reports last year, six children died and nearly 300,000 others were sickened after consuming milk powder containing melamine, a toxic industrial chemical that was added to show a higher protein level in the milk powder. The melamine contamination of dairy products was discovered to be widespread. Concerns about food safety have surfaced in China long before the melamine dairy scare: sub-standard baby milk produced in Anhui, Longkou noodles containing lead from Shandong, fake alcohol in Guangdong, soy sauce made from human hair (still not clear how that works in practice), eggs with melamine – this list is long and a cause of grave concern to Chinese consumers.
This unrest in relation to food safety led to an Asian Development Bank policy note being delivered to the PRC State Council in 2007. The policy note was the result of a technical assistance project between the PRC State Food and Drug Administration and the World Health Organization. The note was generally positive and commented favorably on the great efforts made by the PRC government to improve food safety. Despite some progress, problems remained – in particular in respect of inter-agency coordination and the lack of a framework law in respect of food safety. The latest milk powder problem may have been the catalyst that further sped up the introduction of the new law.
As such, the PRC Food Safety Law was approved by the National People's Congress (NPC) on February 28, 2009, and provides a legal basis for the government to strengthen food safety control "from the production line to the dining table."
The law which goes into effect on June 1, 2009, consolidates hundreds of regulations and standards covering China’s 500,000 food-processing companies and promises tougher penalties for producers of tainted products.
Mark Schaub, Partner, FDI
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On Monday 23 February 2009, the Tribunal de Grande Instance of Paris in France heard an urgent application by a team of Chinese lawyers for an injunction to prevent the auction by Christie’s of two controversial ancient Chinese relics. It was not in dispute that the two bronze sculptures, one of a rat’s head and another of a rabbit’s head, had been looted by Anglo-French troops from the Old Summer Palace in Beijing during the Second Opium War in 1860 and had until recently been part of the collection of the late Yves Saint Laurent. The Tribunal nevertheless rejected the application. Subsequently, on Wednesday 25 February 2009, the sculptures were auctioned off for 14 million euros each to then-anonymous telephone bidders. The controversy is ongoing.
This incident demonstrates the legal difficulties faced by China generally in the retrieval of similarly looted, stolen or otherwise illicitly exported cultural artifacts from abroad. At present, China adopts the following three approaches in respect of such items:
1. repurchasing the items;
2. seeking the return of the items as gifts;
3. seeking the return of the items through diplomatic maneuvers or through the efforts of non-governmental organizations.
This appears to be the first time that China has attempted to seek repatriation of looted cultural property by means of litigation.
Ariel Ye, Dong Ping, and Yang Weiguo of King & Wood's Cross-border Dispute Resolution Practice
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Australia has had a range of general and sector-specific privacy laws for 20 years. At the Federal level, the Privacy Act 1988 (Cth) initially regulated the way in which Commonwealth agencies dealt with the personal information of Australians. The scope of the Privacy Act was expanded to also cover the handling of individuals' credit information and, more broadly in 2001, to cover all private sector organisations and the way in which they collect, use and disclose personal information. Individual States and Territories of Australia also have specific privacy laws that regulate the way State-based agencies deal with personal information, and laws relating to privacy are also found in a variety of legislative contexts.
The result is that Australia has a myriad of privacy-related laws at different levels of Australian Government covering an often overlapping range of issues. This situation was one of the drivers behind a substantive review by the Australian Law Reform Commission (ALRC) into Australia's privacy laws.
By Michelle Rowland, Sarah Alderson of the Communications & Technology Group of Gilbert + Tobin.
Kalley Chen, Dai Chen and Xu Zifeng, of King & Wood.
King & Wood established a strategic alliance with Gilbert + Tobin in November 2007.
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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
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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.
* 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 Practice 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.
By: Andrew Tan, a Partner Arculli Fong & Ng (in association with King & Wood, PRC Lawyers)
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 China and the Environment Protection Department (“EPD”) of the HKSAR. The Implementation Arrangements sets out the specific procedures for Hong Kong companies to conduct CDM projects in Hong Kong...
Continue Reading...By Wang Rui, Partner, King & Wood's Olympic Group
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...
Continue Reading...作者： 李咏梅 诉讼仲裁组 国内诉讼部
近年来，“中国制造”频频被曝存在质量问题。从水产养殖产品到牙膏，从沙滩车到汽车轮胎，从玩具到手机……中国出口产品在国际市场引发“信任危机”。同时，国内 “手机爆炸”到 “欣弗”等产品缺陷致人死亡事件，也频频牵动人们的神经，产品安全问题一再凸现在国人面前。
Continue Reading...By： Li Yongmei King & Wood's Domestic Litigation & Arbitration Practice
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...
Continue Reading...司法实践中，因逾期付款时的债务人违约责任约定不明而常发生争议。债权人在债务人逾期付款时可以主张逾期付款违约金，但就逾期付款违约金计算标准理解不一。不同当事人主张的逾期付款违约金计算标准不同，不同法院采取的裁判准则也不一致，导致对该问题的认识及做法混乱。现就上述问题进行简要阐述。
Continue Reading...By::Cheng Shigang, Associate in King & Wood's Domestic Litigation and Arbitration Practice
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.
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By: Mark Schaub, a Partner of King & wood's corporate Group
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 China. 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.
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Ding Liang, a counsel to King & Wood's International Trade Group in Beijing
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.
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