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By king & Wood Mallesons’ Compliance Group

In order to strengthen the supervision of food safety in China, the National People’s Congress published the “People’s Republic of China Food Safety Law (Revised Amendment)” (“First Revised Amendment”) for public comment on its official website in June 2014. Earlier, in October 2013, the “People’s Republic of China Food Safety Law (Amendment)” (“Amendment”) was published for comment by the State Council. Based on views of the members of the National People’s Congress, the “People’s Republic of China Food Safety Law (The Second Revised Amendment)” (“Second Revised Amendment”) was published in December 2014. Compared to the First Revised Amendment, mainly drafted by the government, the Second Revised Amendment incorporates public views and suggestions. As a result, the Second Revised Amendment is more considerate towards consumer rights and operators’ behavior. This newsletter reviews the highlights of the three Amendments to the People’s Republic of China Food Safety Law and discusses the new provisions of the Second Revised Amendment.
Continue Reading The Second Revised Amendment of the Strictest Food Safety Law in History

作者：金杜律师事务所 合规业务组

2014年3月7日，国务院发布了《医疗器械监督管理条例》（以下简称“《条例》”），2014年7月30日，国家食品药品监督管理总局发布了《医疗器械经营监督管理办法》（以下简称“《办法》”），2014年12月12日，国家食品药品监督管理总局发布了《医疗器械经营质量管理规范》（以下简称“《规范》”）。这一系列的法规和规范的出台，代表了中国政府对医疗器械生产经营企业监管的进一步加强。
Continue Reading 医疗器械行业面临新一轮洗牌

作者：宁宣凤 尹冉冉 吴涵 卫凌波 金杜律师事务所反垄断部

ning_susanuntitled2014年12月4日，商务部在2013年发布的征求意见稿基础上，正式颁布了《关于经营者集中附加限制性条件的规定（试行）》（“限制性条件规定”，或“规定”）。经营者集中附加限制性条件又称“合并救济（merger remedies）”。根据《中华人民共和国反垄断法》（“反垄断法”）第二十八、二十九条的规定， 一项交易具有或者可能具有排除、限制竞争效果的，国务院反垄断执法机构，即商务部，可以决定对该交易附加限制性条件，减少交易预期将对竞争产生的不利影响。自反垄断法生效以来，商务部已经通过附加限制性条件的方式批准了24起交易。考虑到对拟进行交易附加限制性条件将对交易方业务范围和经营方式等产生重大影响，甚至会引起相关市场或行业发展的变化，该规定的正式颁布不仅对经营者集中案件的审查意义重大，对于交易方以及相关市场的竞争者未来的市场经营也有重要影响。

为细化反垄断法的有关规定，商务部于2010年7月5日发布了《关于实施经营者集中资产或业务剥离的暂行规定》（“剥离规定”），为资产和业务剥离类限制性条件制定了初步的实施规则。而此次颁布的限制性条件规定自2015年1月5日起施行，并取代剥离规定，成为附加限制性条件执法的主要依据。具体而言，现行规定包括总则、附则在内共设七章，系统性地对限制性条件的确定、实施、监督、变更和解除以及相关法律责任做出了规定。
Continue Reading 经营者集中审查制度建设的重要进展：《关于经营者集中附加限制性条件的规定（试行）》

By King & Wood Mallesons’ Compliance Group

On March 7th, 2014, the State Council issued the Regulation on the Supervision and Administration of Medical Devices (“Regulation”). On July 30th, 2014, China Food and Drug Administration issued the Measures for the Management, Supervision and Administration over Retail of Medical Devices (“Measure”). On December 12th, 2014, China Food and Drug Administration issued the Standards for Quality Control of Medical Devices (“Standard”). The series of regulatory actions demonstrates China’s efforts to strengthen administration of manufacturers and retailers of medical devices and equipment.
Continue Reading Medical Devices production enterprises are facing higher supervision

On 1 November 2014, the People’s Congress of China approved proposed amendments to China’s Administrative Procedure Law (“APL”) respect of private actions against government agencies for abuses of administrative powers.

Although the AML includes an entire chapter addressing abuses of administrative powers, the provisions are considered to be somewhat lacking in bite. The antitrust enforcement authorities are only authorized to provide advice to the body responsible for a government agency which is alleged to have abused its administrative powers. The antitrust authorities are unable to take any action against, or impose any penalties on, the agency themselves. In addition, to date there have been very few private enforcement actions against government agencies as the existing legislation makes it difficult for individuals and entities to bring such actions.

The reforms, which are explained in this article, are intended to rectify the status quo and will take effect from 1 May 2015.
Continue Reading China Toughens Up on Abuses of Administrative Powers

On 4 November 2014, the State Administrative for Industry and Commerce (“SAIC”) published a decision in which it found that the Pizhou branch of the Xuzhou City Tobacco Corporation (the “Pizhou Tobacco Branch”) had abused its dominant position in the tobacco wholesale distribution market by treating customers of equal standing in a discriminatory manner.  The SAIC found that the Pizhou Tobacco Branch had violated Article 17 of the PRC Anti-Monopoly Law (the “AML”), which prohibits business operators in a dominant market position from engaging in abusive conduct that eliminates or restricts competition, and it imposed a fine of RMB 1.7 million.

We set out in this article some points that are of particular relevance to undertakings subject to the jurisdiction of the AML in evaluating the legal risks of conduct which may constitute an abuse of a dominant market position.
Continue Reading SAIC’s First Decision on Discriminatory Treatment

By Susan Ning, Kate Peng, Sarah Eder and Gao Sibo

 Introduction 

A major concern for undertakings which are involved in international cartel cases is the possibility of receiving overlapping punishments for their cartel conduct by competition authorities in different jurisdictions.

Various jurisdictions, including China, recognize the concept of double jeopardy and have introduced provisions which attempt to prevent over-punishment in the context of national proceedings.  Although there is no international standard to prevent double jeopardy in the context of antitrust enforcement of the same cartel by different jurisdictions, a number of competition authorities have taken the principle into account when imposing fines in international cartel cases, for example by excluding commerce or turnover attributable to certain sales or applying a reduction to the fine to take account of the fact that another jurisdiction has already imposed fines in respect of certain sales.     

We recognize that double jeopardy is an important consideration for clients which are implicated in international cartels. The Chinese antitrust agencies have not yet expressed how they intend to address the issue.  However, as they become more experienced in dealing with such cases, we hope that they will also become more aware of the issue and will clarify their approach to the issue of double jeopardy. 
Continue Reading The Principle of “Double Jeopardy” in International Cartel Investigations

By Susan Ning, Peng Heyue, Yang Yang, Qiu Weiqing, Sarah Eder, and Guo Shaoyi

Introduction

On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, marking the beginning of the first anti-monopoly case in the internet arena. Qihoo lost the first trial and appealed. On 16 October 2014, the Supreme Court handed down its final decision, rejecting Qihoo’s appeal and upholding the first-instance court judgment. This was the first anti-monopoly case heard by the Supreme Court. The Supreme Court’s judgment elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance, which offers guidance and rules for future anti-monopoly litigation, especially those concerning abuse of dominance.
Continue Reading The Supreme Court Goes Online with Anti-Monopoly Law Principles：A Review of Qihoo v.s. Tencent Abuse of Market Dominance Case

宁宣凤 彭荷月 杨旸 邱薇卿 Sarah Eder  郭少毅

简介

2011年11月15日，奇虎向广东省高院起诉腾讯，称腾讯滥用市场支配地位，由此拉开了“互联网反垄断第一案”的序幕。一审判决奇虎败诉，奇虎不服，提出上诉。最高院于2014年10月16日作出终审判决，驳回奇虎上诉请求，维持原判。这是最高院审理的首个反垄断法案件，在判决中最高院对反垄断法基本原理，特别是滥用市场支配地位方面的原理，进行了翔实的阐述；这些原则对未来的反垄断诉讼，尤其是滥用市场支配地位案件，均具有指导性意义和广泛的适用价值。
Continue Reading 中国反垄断法诉讼试水互联网行业: 奇虎诉腾讯滥用市场支配地位一案终审判决述评

By King & Wood  Mallesons’  Compliance Group

Through reviewing the performance and effectiveness of crisis management during recent food safety events, we were reminded of our comments relating to the Revised Amendment to the PRC Food Safety Law and importance of crisis management for multinational companies. Our reflections on recent events are focusing on the following topics: response time; response attitude; internal public relations (PR) team and official press conference.
Continue Reading Reflections on crisis management of recent food safety events