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By Liu Xiangwen, Monique Carroll and Zhu Yuanyuan King & Wood Mallesons’ Dispute Resolution Group

Much has been written on bribery and corruption in China, including the differences between criminal bribery and commercial bribery, and of course, the need for an effective compliance programme. However, foreign companies operating in certain complex or sensitive industries in China need to do more than instil an anti-corruption policy. What is needed is an in-depth understanding of the unique legal environment in their industries. This is because in some industries, particular conduct or business models permitted elsewhere, may be very sensitive and considered bribery or corruption. We recommend that companies operating in China adapt their compliance programme to account for industry specific regulations and sensitivities and undertake regular internal compliance audits as a check on the effectiveness of the compliance programme and to ensure that it remains up-to-date.
Continue Reading What does an Effective Anti-bribery and Corruption Programme Require?

By Liu Xiangwen, Monique Carrroll, Yang Jianyuan and Zhu Yuanyuan

The ‘why’

Due to the sensitivity of commercial bribery, corporations can be reluctant to instigate internal anti-commercial bribery investigations as a check on the effectiveness of their compliance program. Often an internal investigation will only be commenced when a serious problem emerges in the internal management system, a judicial or governmental investigation is initiated or a complaint is received accusing the corporation of serious compliance issues. However, given the increasing global focus on anti-bribery and corruption compliance, the value of regular internal compliance investigations or ‘audits’ has increased. The objective of a compliance audit is to identify and deal with any problems or risk areas before they are obvious to third parties and escalate to the media’s attention. Where the audit uncovers a serious problem that must be reported to regulators, the company will be in a much better position to pro-actively manage the situation – hopefully with the result of minimizing any penalties imposed on the company.

Over the medium to long term, regular compliance audits will strengthen the compliance and risk awareness of both the company and its employees and therefore contribute to an enterprise culture of compliance. Such a culture would in turn contribute to the long-term and sustainable development of the company.
Continue Reading Internal Compliance Audits – the Why and How?

By King & Wood Mallesons’ Compliance  Team

Many of our clients have expressed concern about the legal liabilities faced by senior management of state owned enterprises (“SOE”). As defined by law, senior management of an SOE generally includes legal representatives, directors, supervisors, and other employees classified as senior management. As these employees have special status and responsibilities, they may in certain circumstances bear criminal, civil, administrative or economic liability for their own acts or those of the SOE.
Continue Reading Liabilities Faced by SOE Senior Management

作者：金杜律师事务所合规业务组

国有企业领导人的相关法律责任一直以来是我们众多客户所关注的问题。本篇简讯就此问题与大家分享。根据相关法律规定，企业领导人员一般包括：法定代表人、董事、监事和高级管理人员。由于企业领导人员的特殊身份和职责，其可能会在特定情况下就企业的行为或其个人的行为承担相应的刑事、民事、行政或经济责任。
Continue Reading 国有企业领导责任体系

By King & Wood Mallesons’ Compliance Group

On September 16th，CCTV reported that in order to achieve long-term profits, many milk companies had bribed doctors and nurses. This was done without the knowledge of parents so that hospitals would feed newborn babies with the companies’ milk powder to make the babies dependent on it. On September 17, in order to solve this problem, the National Health and Family Planning Commission circulated a notice forbidding medical institutions and their staff from marketing and promoting breast-milk substitutes. The notice states that the “Mothers and Infants Health Law of the People’s Republic of China” and its implementing regulations, “Rules on the Marketing of Breast-milk Substitute,” should be implemented strictly. To the extent that medical institutions and their staff market or promote breast-milk substitutes, they will be sternly punished according to the law.
Continue Reading “Notice Forbidding Medical Institutions and Their Staff from Marketing and Promoting Breast-milk Substitutes” Summary

作者：金杜律师事务所合规组

中央电视台16日披露，为了达到长期牟利的目的，相关奶粉企业通过贿赂医生和护士，在家长不知情的情况下，让医院给初生婴儿喂自家品牌的奶粉，使孩子对某种奶粉产生依赖。针对这一问题，国家卫生计生委办公厅于9月17日发出关于严禁医疗机构及其人员推销宣传母乳代用品的通知，要求严格执行《母婴保健法》及其实施办法、《母乳代用品销售管理办法》等规定，严禁医疗机构及其人员推销宣传母乳替代品，对违反规定的机构和人员将依据有关规定从严查处。
Continue Reading 《关于严禁医疗机构及其人员推销宣传母乳代用品的通知》概要

By Susan Ning, Kate Peng and Chai Zhifeng

On August 27, 2013, MOFCOM announced its conditional clearance on MediaTek Inc’s (“MediaTek”) 4 billion USD acquisition of MStar Semiconductor Inc (“MStar“) (the “Transaction“). This is the second “hold-separate” case since this year (the other one is Xstrata/Glencore), and the forth one in China’s merger filing history. 1 MOFCOM appears to be getting more and more confident with the “hold-separate” arrangement as a behavior remedy to address competition concerns.  It is also worth to note that the parties are required to submit detailed operation plan within three months of the decision and the transaction can only be closed after the detailed operation plan is approved by MOFCOM.


Continue Reading Another “Hold-Separate” Decision of MOFCOM—MediaTek’s Acquisition of MStar is Cleared with Conditions

作者：宁宣凤、彭荷月、刘佳、萧达莎

        经过十几年的孕育和酝酿，《反垄断法》于2008年8月1日生效实施。这不但是我国法制建设发展的阶段性成果，更是中国市场经济发展的里程碑事件。《反垄断法》共8章57条，确立了一系列崭新的制度——不但反经济垄断，也反行政垄断；不仅有域内效力，还有域外效力；不但确立了公共实施，也肯定了私人执行。所谓反垄断公共实施(public enforcement)，即指国家赋权的反垄断执法机构开展的反垄断行政调查执法活动；所谓反垄断私人执行(private action)，那些自身利益受到反竞争行为影响的法人或自然人通过向法院提起民事诉讼来执行《反垄断法》的。在过去五年中，反垄断公共实施和私人执行共同构建和促进了我国《反垄断法》的实施。这两者相辅相承、相互补充，共同承担着《反垄断法》预防和制止垄断行为，保护市场公平竞争，提高经济运行效率，维护消费者利益和社会公共利益的使命。

        《反垄断法》确立的反垄断民事诉讼与专门机构的反垄断行政执法相结合的“双轨制”符合当今世界各国和地区反垄断法实施的普遍做法和明显趋势，也是能够更为全面的在实践中切实落实《反垄断法》。然而，“双轨制”在实践也会存在一些问题，同一反垄断事件既在法院提起民事诉讼，又进行行政审查，难免有需要协调的方面。对于两个程序之间的协调，目前的一些规定虽然有所涉及，但仍有很多问题没有得到解决。本文意在对这些问题作一个梳理，希望能够抛砖引玉，同时也期待题述问题得以在实践中被司法机关和行政机构探索解决。Continue Reading 《反垄断法》的双轨制——行政执法与民事诉讼的互动

By Susan Ning, Kate Peng, Jia Liu and Rui Li    King & Wood Mallesons’ Antitrust & Competition Group

After more than ten years of deliberation and discussion, Anti-monopoly Law of China (AML) finally came into effect on August 1, 2008. This is not only a periodic achievement in the development of Chinese legal system but also a milestone event since the establishment of Chinese market economy. AML contains eight chapters and fifty-seven articles and sets up a brand new mechanism against economic and administrative monopoly with both domestic and international reaches and private and public enforcement. Public enforcement refers to administrative investigation and enforcement activities initiated by anti-monopoly agencies duly authorized by the nation. Private action refers to anti-monopoly civil action filed at the court by the legal or natural person injured by the anticompetitive conducts. In the past five years, the public and private enforcement have worked in tandem to promote the enforcement of AML. The two enforcement methods complement each other to prevent the anticompetitive conducts violating AML, protect fair market competition, enhance market efficiency, and safeguard consumers’ interest and the public interest.   
Continue Reading The Dual System of Anti-monopoly Law – The Interplay between Administrative Enforcement and Civil Action

作者：宁宣凤、尹冉冉、郑孜青、吉凯伦

《中华人民共和国反垄断法》（以下简称《反垄断法》）自2008年8月1日起实施生效，至今已满5周年。5年来，商务部作为经营者集中审查的主管机关，共审结了逾640起交易，除19起获得附条件批准的交易和1起受到禁止的交易外1，其他交易均获得了无条件批准。5年时间，反垄断的概念在各界的争议和探讨中逐渐深入人心，而商务部的执法能力亦随着实践不断提高，经营者集中附加限制性条件制度也日趋成熟。本文从实务工作者的角度简要回顾和总结经营者集中审查制度及附条件执法的实施情况，以期为企业带来一二启示。
Continue Reading 中国经营者集中审查及附条件执法五年综述