Affiliates need to be Careful in Information Exchange under PRC Anti-monopoly Law

By Susan Ning, Kate Peng, and Yumeng Li King & Wood Mallesons’ Commercial & Regulatory Group

At the outset, the PRC Anti-monopoly Law (AML) does not set out specific requirement on information exchange among affiliates. However, it explicitly provides that independent competitors are prohibited from reaching monopoly agreements.[1]“Monopoly Agreements” refer to agreements, decisions or other concerted practices that eliminate or restrict competition.[2] According to relevant provisions promulgated by the NDRC and the SAIC, the authorities will determine whether there exists concerted conducts based on various factors, including whether there is uniformity in their acts, whether there has been communication of intention or exchange of information, and whether business operators are able to give reasonable explanations for their concerted conducts.[3] In situations where the exchange of certain commercial sensitive information facilities concerted practice, the authorities may decide that monopoly agreements are concluded by competitors.

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