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By King & Wood’s Securities Group

Following the promulgation of the Notice on Further Regulating the Administration of Development and Filing of Equity Investment Enterprises in Pilot Areas (the "Pilot Rules") by the National Development and Reform Commission (the "NDRC") on 31 January 2011 and positive feedback from the six pilot areas, the NDRC is now determined to apply its administration and filing system to equity investment enterprises ("EIEs") across the nation. 

On November 23, 2011, the NDRC promulgated its first set of nationwide rules on the administration of equity investment enterprises, the Notice on Promoting Regular Development of Equity Investment Enterprises (the "Notice"). The main objective of the Notice is to standardize the establishment and operation of private equity funds.  This Notice evolved from the Pilot Rules and has addressed five major topics.  Together with the Notice, the NDRC also issued a set of forms for filing and guidance for EIEs’ constitutional documents (i.e. guidance on articles of association/partnership agreement of EIEs, guidance on the fund raising prospectus, etc.).Continue Reading NDRC Standardizes Private Equity Funds Filing System

King & Wood’s Intellectual Property Group

In recent years, the world has witnessed several milestone events signaling the arrival of a new generation of global internet companies. Apart from the much-hyped dawn of social media, there is a much broader trend taking place, one that has outgrown the traditional boundaries of the tech sector itself. “In short,” as Marc Andreessen wrote in a recent Wall Street Journal column, “software is eating the world.” As corresponding developments are happening in China, this new era has caused and will continue to cause dramatic implications on the monitoring and enforcement of intellectual property rights in the country. Continue Reading Enforcing Intellectual Property Rights in the Next Internet Era

By Susan Ning, Sun Yiming and Hazel Yin

It was reported 1 that on December 15, 2011, the Intermediate Court of Changsha, Hunan Province dismissed a consumer’s complaint that automobile producer Dongfeng Nissan and its 4S store 2 abused their dominant position in violation of China’s Anti-monopoly Law ("AML") by reaping exorbitant profits and expelling their competitors.  The case was originally filed in November 2010 and the court hearing was held in May 4, 2011.  It is the first antitrust lawsuit in the automobile industry and yet another defeated attempt by Chinese consumers in bringing AML private actions.

The plaintiff, Mr. Liu Dahua, is a Nissan car owner.  In October 2009, He had his car repaired at a local 4S store of Nissan.  Finding that the 4S store charged much higher price for repair services than other local auto repair factories, Mr. Liu asked the 4S store to sell the spare parts separately so he could do the repairs elsewhere.  However, the 4S store turned down his request saying that Dongfeng Nissan did not allow its 4S stores to sell spare parts alone, meaning that customers could only purchase the spare parts as well as the repair services together from Dongfeng Nissan’s 4S stores.Continue Reading Consumer Lost Antitrust Action against Dongfeng Nissan

By King & Wood’s Finance Group

The China Banking Regulatory Commission (the "CBRC") issued Guiding Opinions of the China Banking Regulatory Commission on the Implementation of the New Regulatory Standards by the Chinese Banking Industry (Yin Jian Fa [2011] No. 44) (the "Guiding Opinion") on April 27, 2011, which clearly creates new rules for liquidity and capital held by banks in accordance with the "Basel Accord III" ("Basel III"), and on the basis of comprehensively assessing the effectiveness of the current prudent regulatory system, to improve the capital adequacy ratio, leverage ratio, liquidity, loan loss reserve and other regulatory standards. The four new regulatory standards for capital listed above will be implemented on January 1, 2012.Continue Reading New Capital Requirements for Banks Postponed

作者：金杜律师事务所融资组

中国银行业监督委员会（“银监会”）于2011年4月27日发布了《中国银监会关于中国银行业实施新监管标准的指导意见》（银监发[2011]44号）（“《指导意见》”），明确将根据《第三版巴塞尔协议（Basel III）》确定银行资本和流动性监管新制度，在全面评估现行审慎监管制度有效性的基础上，提高资本充足率、杠杆率、流动性、贷款损失准备等监管标准，并提出上述四项新资本监管标准从2012年1月1日开始执行。Continue Reading 商业银行资本监管新规暂缓实施

By King & Wood’s Trademark Group

There has been a long debate on whether an unregistered trademark can be the subject of a franchise contract in China. Proponents argue that an unregistered trademark is the franchiser’s property and is thus eligible for being franchised so long as it is of economic value in the eyes of the franchisee. Opponents of this argument see an unregistered trademark as not legally owned by a franchiser without going through the trademark registration process and therefore not eligible for being licensed in a franchise contract. The Regulation on Administration of Commercial Franchises ("Regulation on Franchises") (商业特许经营管理条例) enacted by the State Council of the PRC on February 6, 2007, while clearly including registered trademarks, enterprise marks, patents and know-how into the checklist of business resources that a franchiser "possesses" for franchising, fails to touch on the issue of unregistered trademarks. However, it leaves room by putting the catch-all of "any other business resource" undefined.Continue Reading An Unregistered Trademark is Formally Franchisable in Beijing

金杜律师事务所商标组

未注册商标能否成为特许经营合同标的？长久以来争论不休。正方观点认为，未注册商标是特许人的无形财产，只要被特许人认可其经济价值，即可成为特许标的。反方观点认为未经注册，特许人未在法律上获得商标所有权，因此未注册商标不能作为特许人的经营资源而被许可给他人。国务院2007年2月6日颁布的《商业特许经营管理条例》明确把注册商标、企业标志、专利、专有技术列为特许人拥有的可许可给其他经营者使用的经营资源，但并未提及未注册商标。不过，与此同时，该《条例》又以“等经营资源”的表述方式留出解释空间。Continue Reading 北京正式确认未注册商标为可特许资源，其他地区待确认

By Xianjie Ding and Di Yao King & Wood’s IP Legal Group

New developments in e-commerce regulation bring the issue of intellectual property infringement and the liability of e-commerce operators to light. A landmark case in China removed the defence of the "Safe Harbor Principle" for the first time, and should serve as an admonition to online platforms

The rise of e-commerce in China

In 2011, the e-commerce business in China underwent major changes. After significant amounts of private equity (PE) investments and many successful initial public offerings (IPOs) on the New York Stock Exchange (NYSE) or NASDAQ, e-commerce operators have increased resources to develop their business strategies. They are no long playing a neutral role by providing a merely technical and automatic processing of the data (for example, merely providing space for a blog, etc.) but marketing aggressively as a real internet value-added service provider (for example, providing services in building up or optimising a member’s own website, etc.). This change in role will lead to great legal challenges in the future in the area of trade mark infringements committed on an e-commerce operator’s platform. This article will introduce two high-profile online trade mark infringement cases in both the EU and China, and offer an analysis of the implications on the development of e-commerce.

Continue Reading IP reshapes e-commerce strategies

Susan Ning and Ding Liang

On December 16, 2011, the Beijing Lawyers Association organized a seminar inviting Mr. Zhou Zhigao, an official from the Price Supervision, Inspection and Anti-monopoly Bureau (Price Supervision and Anti-monopoly Bureau) of the National Development and Reform Commission (NDRC), to speak on anti-price monopoly legislation and enforcement. 
 Continue Reading NDRC Doubles Its Antitrust Enforcement Force

By  Susan Ning, Ji Kailun and Yin Ranran

On December 12th, 2011, the Ministry of Commerce ("MOFCOM") conditionally approved the acquisition of the hard disk drive ("HDD") business of the Korean Samsung Electronics ("Samsung") by the US Seagate Technology ("Seagate")1. This is the 4th conditional approval of this year and the 10th conditional approval by MOFCOM since China’s Anti-Monopoly Law ("AML") entered into effect in 2008.

According to MOFCOM’s announcement, this review process lasted for almost 7 months starting from May 19th when the notification was first submitted to MOFCOM. The review process entered into the Extended Phase II and was cleared on the next business day of the expiry date of this phase.2  
 Continue Reading With Conditions, MOFCOM Clears Seagate/Samsung Deal