By Susan Ning and Liu Jia
On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. According to its announcement1 , the review process lasted for 3.5 months starting from 14 July 2011 when the notification was submitted to MOFCOM.
Set forth below is a chart outlining the review process.Continue Reading Alpha V/Savio Deal – A Procedural Overview of MOFCOM’s Decision-making Process
2011年7月22日，美国华盛顿州通过了修改其《反不正当竞争法》的议案，新增一章名为《产品销售-窃取或盗用信息技术》的新法（以下简称“新法”）。根据该法律规定，在生产、经营中使用假冒盗版信息技术产品（包括假冒硬件产品和软件产品）并拒不改正的产品制造商，无论其违法行为发生在何处，只要其产品在华盛顿州销售或者许诺销售，都将可能构成不正当竞争，从而导致其在美国华盛顿州被政府或其竞争者起诉，并可能因此导致货物在美国被扣押、被禁止销售、以及被判令支付赔偿金，甚至惩罚性赔偿。该法案的颁布和实施虽然远在美国华盛顿州，但却对于全球所有向美国出口的制造业企业均有影响。中国被视为“世界工厂”而美国又是“中国制造”产品的最大出口市场，众多的中国制造企业均应注意该法案可能对其生产经营活动所产生的实质性影响，避免由于在生产经营过程中使用假冒盗版IT产品导致向美国出口受阻并引发其他法律风险。Continue Reading 使用盗版软件将可能导致在美国被诉 – 评美国华盛顿州新修订之《反不正当竞争法》
By Susan Ning and Huang Jing
On 7 September 2011, the Shanxi Combined Transportation Group Company (SCTG) filed an administrative law suit with the Taiyuan Xinghualing District People’s Court against the Taiyuan Bureau of Railways (the "SCTG Case"). On 15 September 2011, the Taiyuan Xinghualing District People’s Court accepted the SCTG Case.
SCTG alleged that it had submitted two applications to the Taiyuan Bureau of Railways for establishing new railway ticket agent stores on 25 January 2011; but Taiyuan Bureau of Railways did not respond to such applications. According to SCTG, Taiyuan Bureau of Railways’ conduct was a violation of the Anti-monopoly Law (AML), and constituted administrative omission. Thus SCTG filed the administrative lawsuit.Continue Reading Taiyuan Bureau of Railways Sued for Antitrust Violation
By Susan Ning, Liu Jia, Sun Yi Ming and Yin Ranran
In early November, Taobao Mall (Tmall), part of the e-commerce operations of Alibaba Group and considered as China’s biggest business-to-consumer (B2C) retail platform, suffered from a stormy protest from small vendors against its new rules. Meanwhile, antitrust concerns arise in relation to its suspected abuse of dominance in the e-commerce industry.
This article provides an overview of the whole incident, outlines details to do with Tmall’ s conduct and examines whether such conduct could be considered as an abuse of dominance in violation of the Anti-monopoly Law of China (AML).Continue Reading Tmall Incident – Another Chinese Internet Giant Accused of Abusing Dominance
By Susan Ning and Huang Jing
On 21 September 2011, Mr. Shang Ming, Director General of MOFCOM’s Anti-Monopoly Bureau revealed the most recent legislative plan of MOFCOM’ at the BRICS International Competition Conference 2011 held in Beijing.
According to Mr. Shang, MOFCOM will promulgate 3 new rules on merger control within this or next year. The 3 new rules are: Rules on Imposing Restrictive Conditions on Concentration of Operators (the "Rules on Remedies"), Rules on the Investigation and Handling of Violation of Notification Obligations for Concentration of Operators (the "Rules on Violation of Notification Obligations"), and Rules on the Investigation and Handling of the Concentration of Operators below the Notification Thresholds with Monopoly Suspicion (the "Rules on Mergers Below Thresholds").Continue Reading MOFCOM to Promulgate Three New Rules on Merger Control
By Susan Ning, Sun Yiming and Liu Jia
Most recently, the hottest topic on China’s Anti-monopoly Law (AML) is a piece of news spreading on the internet, indicating that China Telecom, one of China’s largest state-owned enterprises is under antitrust investigation conducted by a "relevant" competition authority for its suspected abuse of dominance in broadband market. If the abuse is successfully established, China Telecom may face huge fines under the AML. The news is also quoted by Xinhuanet.com, an authoritative website run by the government. However there has been no formal response from China Telecom or any competition authorities so far in this respect.
This article outlines details to do with China Telecom’s conduct and examines whether or to what extent such conduct would be considered as an abuse of dominance and thus in violation of the AML.
Continue Reading Chinese Antitrust Enforcement Agencies Ready to Show Teeth to Large State-owned Enterprises?
Susan Ning and Yin Ranran
On September 2, 2011, China’s Ministry of Commerce ("MOFCOM") released on its website the Provisional Rules on Assessment of Competitive Effects of Concentration of Business Operators (MOFCOM 2011 Announcement No. 55, the "Rules"). With 14 articles, the Rules elaborated on the factors to be considered by MOFCOM in assessing the competitive effects of a business concentration, which have been listed in Article 27 of the Anti-monopoly Law ("AML")1 . The Rules are implemented as of today (September 5, 2011).
The Rules set out the basic methodology for its competitive analysis and the basic elements for application of each factor in a merger review process. The Rules appear to identify market share/market control power and market concentration levels as the most important factors to be considered by MOFCOM in assessment of competitive effects of a concentration.Continue Reading MOFCOM’s New Antitrust Rules Shed Light on Its Competitive Assessment Process
By Susan Ning, Huang Jing and Yin Ranran
On 25 August 2011, the Ministry of Commerce (MOFCOM) released the MOFCOM Rules for Implementation of Relevant Issues regarding National Security Review Mechanism for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (NSR Rules). From 1 September 2011, the Rules replaces the MOFCOM Interim Rules for Implementation of Relevant Issues regarding National Security Review Mechanism for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (NSR Interim Rules) issued on 4 March 2011 (see our article entitled "MOFCOM issues national security review interim rules").
Compared with the Interim Rules, the key change we see in the NSR Rules is that MOFCOM clearly states that the authority will assess the applicability of the national security review (NSR) process from the substance and actual impact of a transaction; and that foreign investors shall not evade the NSR regime via alternative transaction structures, including but not limited to warehousing arrangements, trusts, multi-tier investments, leases, loans, contractual control, or offshore transactions, etc.Continue Reading Updated National Security Review Rules: A Justifiable Cause of Anxiety?
By Susan Ning and Yin Ranran
On 27 July 2011, the Ministry of Industry and Information Technology ("MIIT") issued for public comments draft rules entitled Provisions on Administration of Internet Information Services (Draft for Comments) ("Draft Rules").
The Draft Rules are based on an earlier draft entitled Interim Rules for Supervision and Management of Internet Information Service Market ("Interim Rules") released by MIIT on 12 January 2011.1 The Draft Rules mainly set out the code of conducts for an internet information service provider ("IISP") vis-à-vis its competitors and consumers.
Continue Reading MIIT Issues Revised Draft Rules Governing Competition in Internet Industry
By 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 automobiles and eliminated and restricted competition in this industry. After investigation, the Guangdong AIC officially proposed to the Guangdong Government asking for rectification of Heyuan Government’s abusive conducts.
According to news reports, after receiving the complaint, the Guangdong AIC initiated investigations and identified the following facts:
Continue Reading First Enforcement Action under Anti-Monopoly Law against Administrative Monopoly