作者：陈湘林 金杜律师事务所争议解决组 【内容摘要】本文基于诉讼和战争的可比性，参照《孙子兵法》首篇“计篇”，结合中国司法程序中的具体案例，将决定诉讼案件胜负的因素总结为三类，即基本因素、通常因素和特殊因素，具体包括“经济实力”、“事实”、“法律”、“情理”、“团队配合”、“诉讼时间和时机”、“诉讼地”、“主办律师”、“律所和客户内部管理”、“社会资源”等10个。同时，就依据该10个因素对案件胜负进行综合权衡的基本规律进行了初步总结，从而为中国司法程序中诉讼策略和诉讼方案的谋定奠定基础。
Tag Archives: Law
论中国司法程序中决定诉讼案件胜负的十大因素–结合《孙子兵法》”计篇”的思考（上）
Posted in Corporate, Dispute Resolution作者：陈湘林 金杜律师事务所争议解决组 【内容摘要】本文基于诉讼和战争的可比性，参照《孙子兵法》首篇“计篇”，结合中国司法程序中的具体案例，将决定诉讼案件胜负的因素总结为三类，即基本因素、通常因素和特殊因素，具体包括“经济实力”、“事实”、“法律”、“情理”、“团队配合”、“诉讼时间和时机”、“诉讼地”、“主办律师”、“律所和客户内部管理”、“社会资源”等10个。同时，就依据该10个因素对案件胜负进行综合权衡的基本规律进行了初步总结，从而为中国司法程序中诉讼策略和诉讼方案的谋定奠定基础。
First Enforcement Action under Anti-Monopoly Law against Administrative Monopoly
Posted in Antitrust & CompetitionBy Susan Ning, Huang Jing and Yin Ranran On January 26, 2010, three GPS operators filed a complaint to the Guangdong Administration for Industry and Commerce ("Guangdong AIC") claiming that the municipal government of Heyuan city, Guangdong province ("Heyuan Government") abused its administrative power in the course of promoting the global positioning system ("GPS") for… Continue Reading
Potential Monopoly In China’s Internet Industry Caught Attention of Chinese Competition Authorities
Posted in Antitrust & CompetitionBy Susan Ning, Liu Jia and Yin Ranran The QQ / 360 battle broken out towards the end of 2010 (see our article entitled "The QQ / 360 Disputes – Who, What, Where, When and Preliminary Antitrust Analysis") has stirred lasting and heated discussions about anti-monopoly issues in the emerging Internet industry in China. … Continue Reading
Formal Establishment of Anti-Monopoly Commission Office within MOFCOM Approved
Posted in Antitrust & CompetitionSusan Ning and Yin Ranran Recently, the Ministry of Commerce (MOFCOM) announced that its Anti-monopoly Bureau is to put up a signboard for the "Office of State Council’s Anti-Monopoly Commission (AMC)". According to Mr. Yao Jian, a spokesman for MOFCOM, the State Council has approved the formal establishment of the AMC Office (even though the… Continue Reading
NDRC and EU’s DG Competition organize conference on price-related monopoly agreements
Posted in Antitrust & CompetitionBy Susan Ning, Liu Jia and Angie Ng The National Development and Reform Commission (NDRC) has co-organised a conference focusing on price related monopoly agreements with the European Commission Directorate-General for Competition (DG Competition). The conference took place from 1 to 2 June 2011. Antitrust authorities from the following jurisdictions attended this conference: the European… Continue Reading
The Russian Potash Deal – first conditional clearance of 2011
Posted in Antitrust & CompetitionBy Susan Ning, Chai Zhifeng and Angie Ng On June 2, 2011, Ministry of Commerce (MOFCOM) publicly announced the first conditional merger clearance in 2011. At its [2011] No. 33 Announcement, MOFCOM cleared Uralkali’s proposed acquisition of Silvinit (the Parties) (both potash producers based in Russia) with conditions. This is the 7th conditional merger clearance… Continue Reading
《最高人民法院关于适用若干问题的规定（三）》实务解读
Posted in Dispute Resolution作者：张保生 金杜律师事务所争议解决组合伙人 2005年修订的《中华人民共和国公司法》（1）（下称“《公司法》”），对我国公司法律制度作出较大调整和完善，增加了公司纠纷的可诉性。但由于《公司法》的一些规定过于概括性、原则性甚至宣示性，司法实践中对公司诉讼案件同案不同判的现象比较常见。为解决《公司法》理解和适用的统一问题，指导司法实践和公司相关主体的商事活动，最高人民法院此前先后对《公司法》做出两个司法解释（2），重点明确《公司法》适用的一些基本原则和公司解散、清算问题。2011年2月16日，最高人民法院颁布《关于适用<中华人民共和国公司法>若干问题的规定（三）》(下称“司法解释（三）”)，对公司成立前债务承担、出资和股权确认等实践中争议较大的问题作出解释。本文试从实务角度对司法解释（三）进行解读。
Price signaling and price hikes – a breach of the Price Law or Anti-Monopoly Law?
Posted in Antitrust & CompetitionBy: Susan Ning, Angie Ng and Shan Lining Last week (between 26 to 27 May 2011), it was reported in the press that Unilever has raised the prices of specific products (including Lux and Hazeline branded shampoos and shower gels) by 10% in some cities including Beijing, Shanghai and Guangzhou (Unilever’s price increases). This was… Continue Reading
Price hikes and price signaling
Posted in Antitrust & CompetitionBy: Susan Ning, Shan Lining and Angie Ng On 6 May 2011, the National Development and Reform Commission (NDRC) announced that a manufacturer of household and personal care products (the Manufacturer) has been fined a total of RMB2 million for breaching the Price Law. The NDRC also appeared to have made some Anti-Monopoly Law (AML)… Continue Reading
AML Class Actions and The Draft Litigation Rules
Posted in Antitrust & CompetitionBy Susan Ning, Liu Jia and Angie Ng On 25 April 2011, the Supreme People’s Court (the Court) published draft rules which govern Anti-Monopoly Law (AML) private actions (Draft Rules)1. These Draft Rules are entitled "Provisions on Issues Concerning the Application of Law in relation to Trials of Monopoly Civil Dispute Cases". The Court will… Continue Reading
A Further Look At The Draft Rules Governing AML Private Actions
Posted in Antitrust & CompetitionBy Susan Ning, Shan Lining, Ji Kailun and Liu Jia On 25 April 2011, the Supreme People’s Court (the Court) published draft rules which govern Anti-Monopoly Law private actions (Draft Rules). These draft rules are entitled "Provisions on Issues Concerning the Application of Law in relation to Trials of Monopoly Civil Dispute Cases". … Continue Reading
Supreme People’s Court Issues Draft Rules Governing Private Actions under the Anti-Monopoly Law
Posted in Antitrust & CompetitionBy Susan Ning, Yin Ranran On 25 April 2011, the Supreme People’s Court issued for public comments draft rules which govern civil action in relation to Anti-Monopoly Law (AML) disputes. These rules are entitled "Provisions on Issues Concerning the Application of Law in the Trial of Monopoly Civil Dispute Cases"("Draft Rules"). Prior to the release… Continue Reading
NDRC Held Talks with 17 Industry Associations
Posted in Antitrust & CompetitionBy Susan Ning and Yin Ranran On 2 April 2011, the National Development and Reform Commission (NDRC) hosted a conference with 17 industry associations (relating to businesses selling major consumer products such as household electrical appliances, food, beverages and dairy products) in Beijing. Specifically, the NDRC’s Price Department and Economic and Trade Department convened the… Continue Reading
Businesses Should Be Cautious in Making Advance Price Increase Announcement
Posted in Antitrust & CompetitionBy Susan Ning, Yin Ranran and Angie Ng An instant noodle manufacturer recently announced that it decided to increase prices for its "container instant noodle" (referring to both instant noodles packaged into a variety of "cup-like" or rectangular containers) from 1 April 2011. In China, this instant noodle manufacturer is considered one of the leading… Continue Reading
Salt Price Hikes Curbed by the Price Law
Posted in Antitrust & CompetitionBy Susan Ning, Shan Lining and Angie Ng The radiation leaks in Japan’s Fukushima Daiichi nuclear plant (caused by the earthquake-tsunami in Japan on 11 March) has made consumers in China paranoid about the salt they will consume in the near future. Once news of the leak in the nuclear plant broke, there was a… Continue Reading
The annual “two sessions” and antitrust law noises
Posted in Antitrust & CompetitionBy Susan Ning, Liu Jia and Angie Ng In March every year, lawmakers and political advisers from the National People’s Congress (NPC) (Chinas equivalent of Parliament) and the Chinese People’s Political Consultative Committee (CPPCC) (China’s top advisory body) conduct sessions in Beijing to take stock of social, legal and economic issues in China for the… Continue Reading
Wiki-Hudong against Wiki-Baidu – an abuse of dominance?
Posted in Antitrust & CompetitionBy Susan Ning, Liu Jia and Angie Ng We understand from media reports that on 18 February 2011, Hudong1 (a Chinese internet search engine) made an Anti-Monopoly Law (AML) complaint to the State Administration for Industry and Commerce (SAIC) against Baidu2 (arguably the most often or commonly used internet search engine in China; often referred… Continue Reading
China’s Support of Domestic Software Industry Strengthened by State Council Release of P.R.C. Government Policies
Posted in Intellectual PropertyBy Richard Wigley of King & Wood’s Intellectual Property Group China’s packaged software market is estimated to "grow from $4.7 Billion in 2008 to $8.3 Billion by 2013, with a five-year CAGR of 12.1%"1. China’s domestic software industry has, however, long suffered from the effects of rampant software piracy, making it difficult for domestic industry players… Continue Reading
China Clean Tech at Risk– Initiation of the Recent Section 301 Investigation
Posted in Dispute ResolutionBy 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… Continue Reading
Arbitration Negotiation Tips
Posted in Dispute ResolutionBy Meg Utterback, Ariel Ye and James Rowland of King & Wood’s Cross Border Dispute Resolution Practice The majority of cases, whether in court or arbitration, are settled. Parties weigh a variety of factors from the start of the dispute to award, constantly performing a cost benefit analysis. Generally speaking, issues such as principle and… Continue Reading
关于最高法院调整一审民商事案件级别管辖标准的一点看法
Posted in Dispute Resolution作者：刘军 金杜律师事务所 广州分所 国内诉讼部 2008年3月30日，最高法院公布调整各高级法院和中级法院管辖第一审民商事案件标准，主要从案件标的额方面大幅提高了高级法院和中级法院受理一审民商事案件的门槛，新标准自2008年4月1日起施行。 此次调整将大大减少各高级法院受理一审案件以及最高法院受理二审案件的数量，但同时会导致基层法院受理一审案件数量的激增，相应地中级法院二审案件的办案压力也会一定程度的增大。可以说，新标准的实施后，绝大部分民商事案件的一审、二审工作将由基层法院和中级法院承担。