By Susan Ning and Kate Peng
 
On Jan 4th, the National Development and Reform Commission (“NDRC“) published that they had imposed fines in a total amount of RMB 353 million (approximately USD 56 million) on 6 LCD panel manufacturers, including Samsung and LG of Korea and ChiMei, AU Optronics, Chunghwa Picture Tubes and HannStar from Taiwan region.  This is China’s first antitrust enforcement action against international cartels.  It also imposes the highest penalties in China’s antitrust enforcement history.

According to the press releases of NDRC on its official website 1, during the period from 2001 to 2006, the 6 LCD manufacturers, which accounted for about 80% of the global LCD panel market, convened 53 meetings in Taiwan and Korea to exchange market information and negotiate the price of LCD panels.  NDRC received complaints on the cartel from major Chinese TV makers in December 2006.  The TV makers also reported non-price related misconducts of the panel manufacturers, including providing an 18-month warranty only and failing to provide high-end products in a timely manner. Continue Reading NDRC Imposed Stiff Fines on Multinational LCD Manufacturers in China’s First Antitrust Enforcement Action against International Cartels

By Susan Ning, Ji Kailun and Hazel Yin 

On December 6th, 2012, the Ministry of Commerce (“MOFCOM“) cleared the proposed establishment of a joint venture (“JV“) by ARM Holdings plc (“ARM“), a UK semiconductor intellectual property (“IP“) supplier, Giesecke & Devrient GmbH (“G&D“) and Gemalto NV (“Gemalto“), both providers of security solutions, with behavioral conditions.  This marks the third conditional clearance of JVs issued by MOFCOM.  The JV will be engaged in providing security solutions named trusted execution environments (“TEE“) for consumer electronic devices. 

Continue Reading MOFCOM cleared Joint Venture between ARM, Giesecke & Devrient and Gemalto with Conditions

作者：姜俊禄 金姗 金杜律师事务所劳动法组

小李受雇于一家劳务派遣公司，被派到甲公司工作已经有9年的时间，但是始终只能以劳务派遣工的身份工作，工资待遇与甲公司的正式员工相差甚大。他有很多抱怨，但是却无处诉说。

2012年12月28日，全国人大常委会通过了《关于修改劳动合同法的决定》(“决定”)，该“决定”将于2013年7月1日起正式实施。从此小李的命运将发生重大改变。

此次修订是针对于《中华人民共和国劳动合同法》（“《劳动合同法》”）中有关于劳务派遣的相关规定，对于劳务派遣单位的经营资质、经营劳务派遣业务的行政许可、被派遣员工与用工单位员工的“同工同酬”、可以适用劳务派遣的“三性”岗位等内容予以细化与明确。 Continue Reading 劳务派遣走向何方

作者：姜俊禄 金姗  金杜律师事务所劳动法组

每天，我们收到大量的垃圾短信、垃圾邮件、垃圾电话甚至垃圾信件。不知什么时候，我们的个人信息悄无声音地被一些机构窃取。我们每个人成为这些机构非法行为的受害者。

2012年12月28日，全国人民代表大会常务委员会通过《关于加强网络信息保护的决定》(“决定”)并于当日施行，开始了保护网络信息的工程。

1.个人信息保护

“决定”要求任何组织和个人不得窃取或者以其他非法方式获取公民个人电子信息，不得出售或者非法向他人提供公民个人电子信息。 Continue Reading 谁来保护我们的网络信息？

by Wang Ling and Zhou Jie  King and Wood Mallesons’ Finance Group

2012 has witnessed another year of growing demand and strong deal flows in the Chinese aviation market. By year end, more than 350 new aircraft will have been delivered for operation in China including commercial airplanes and business jets. Active participation of Chinese banks and leasing companies (through both onshore and offshore entities) along with innovative transaction structures developed for the Chinese market by market participants and their counsels have contributed to the robust growth.

US Export-Import Bank Guaranteed Structure

For the first time in Chinese aviation finance history, a Chinese airline is able to leverage over the credit support of the Export-Import Bank of the United States (“US Ex-Im Bank”) without a guarantee from a Chinese bank or a sovereign undertaking from the Chinese government. Continue Reading China Aviation Finance Market On the Rise – A Look Back at 2012

 By Ariel Ye  Monique Carroll and Li Li  King and Wood Mallesons’ Dispute Resolution Group

1 Introduction

Historically, Chinese parties were able to avoid, to a large extent, the consequences of adverse awards made against them by international tribunals. This was primarily because Chinese courts were reluctant to enforce foreign arbitral awards against Chinese parties. In recent years, however, the Chinese Government has made significant advances in supporting domestic and international arbitration, in particular, in respect of the enforcement of foreign arbitral awards. Now international arbitration is a reality for Chinese entities doing business with foreign entities. This is reflected by the significant increase in the number of Chinese parties involved in international arbitration, however, there is also an alarming percentage of Chinese parties being unsuccessful in international arbitration. We believe the success rate of Chinese parties in international arbitration can be improved, by addressing a number of key issues set out below. Continue Reading How Chinese Parties Can Improve Outcomes in Foreign Arbitration

By Susan Ning, Kate Peng and Yunlong Zhang

 

 

On December 4th and 5th, 2012, the first China Competition Policy Forum (the “Forum“) was held in China University of  Political Science and Law.  The Forum was sponsored by the expert advisory group of the Anti-monopoly Commission of the State Council.   The Directors-General of the three enforcers under the Anti-Monopoly Law (the “AML“), i.e. the Ministry of Commerce (“MOFCOM“), the National Development and Reform Commission (“NDRC“) and the State Administration for Industry and Commerce (“SAIC“) attended the Forum and introduced the latest development of their AML enforcement activities.1

According to Director-General Shang Ming (尚明) of the Anti-Monopoly Bureau of MOFCOM, up to September 30, 2012, a total of 622 merger notification filings were received by MOFCOM, among which 562 were accepted and 510 were closed.  Amongst the cases having been closed, only 1 case was rejected (i.e., Coca Cola’s acquisition of Hui Yuan) and 15 cases were cleared with conditions.   Mr. Shang mentioned the publication of 458 unconditionally approved cases in November this year2,    and indicated that MOFCOM would regularly summarize and release the unconditionally cleared cases in the future.

  Continue Reading Heads of the Three Antitrust Enforcement Agencies Attended the First China Competition Policy Forum

By Harry Liu and Qiu yue  King and Wood Mallesons’ Dispute Resolution Group  Shanghai Office

As an alternative dispute resolution mechanism, arbitration has been increasingly widely chosen as the dispute resolution method by parties to the commercial contracts. A signatory to the arbitration clause may bring litigation jointly against the other party to the arbitration clause and non-signatories to such arbitration clause. It remains uncertain in judicial practice whether courts have jurisdiction over such joint tort disputes despite of the arbitration clause. The Supreme People’s Court’s view towards the issue also has shifted back and forth. The retrial ruling lately handed down by the Supreme People’s Court after confirmed by its judicial committee gave a clearer answer to the question, which will definitely have a demonstration effect on the judicial practice in the future. Continue Reading Retrial Ruling of the Supreme People’s Court Settles the Disputes on the Jurisdiction over Joint Tort Cases: Litigation or Arbitration

作者：刘海涛 仇越 金杜律师事务所争议解决组 上海办公室

仲裁作为一种非诉纠纷解决方式，越来越普遍地被商事合同当事人选择为合同纠纷解决方式。仲裁条款的一方当事人可能会以仲裁条款的另一方当事人与非仲裁条款当事人为共同被告以共同侵权为由提起诉讼。在这种情况下，法院对共同侵权纠纷是否具有管辖权的问题在司法实践中一直没有确切的答案，最高人民法院对这一问题也态度摇摆。最高人民法院近期作出的并经审判委员会讨论通过的再审裁定无疑对这一问题给予了较为明晰的答复，对今后的司法实践具有示范、参考作用。

一、 以往案例回顾

在合同履行过程中，一方当事人的欺诈行为或其他违约行为可能同时构成侵权，另一方当事人可能会以侵权为由直接向法院起诉，而非依据合同中的仲裁条款提起仲裁。就这种类型的管辖权纠纷，最高人民法院已在《第二次全国涉外商事海事审判工作会议纪要》中给予了明确的答复，涉外商事合同的当事人之间签订有效仲裁协议约定了合同发生的或与合同有关的一切争议均应通过仲裁方式解决，原告就当事人在签订和履行合同过程中发生的纠纷以侵权为由向人民法院提起诉讼的，人民法院不享有管辖权。 Continue Reading 最高人民法院再审裁定厘清共同侵权案件诉讼与仲裁之争

By Qian Yaozhi, Xia Dongxia, Liu Xiangwen & Zhou We King and Wood Mallesons’ Dispute Resolution Group

The Haifu Case is the first case in China where a court has denied the validity of an agreement containing a valuation adjustment mechanism (“VAM Agreement”). It has caused drastic reactions in the PE industry, and not surprisingly, the retrial of this case by the Supreme People’s Court of China (the “Supreme Court”) has also attracted intense public attention. Recently, the Supreme Court has given its retrial judgment, where the Supreme Court (i) corrects the lower courts’ decisions that completely deny the validity of the VAM agreement, and (ii) distinguishes VAM agreements between shareholders and the company from that between the shareholders only, and affirms the validity of the latter. This retrial judgment can be expected to have considerable influence on the controversial issue of validity of VAM agreement, and to generate significant implications for PE investors as for how to protect their interest. Continue Reading The Haifu Case Review –Interpreting the Supreme People’s Court’s Retrial Judgment And It’s Implications for PE Investors