By King & Wood’s Banking Group

Since the launch of the pilot program of RMB settlement in cross-border trade transactions in July 2009, the volume and complexity of the said transactions and the ancillary banking businesses have been rapidly increasing. During the past two years, the pilot program was carried out in 20 provincial regions. PBOC plans to expand the pilot program to the whole country within this year. In order to satisfy business and banking industry’s strong needs for policy transparency, regulatory authorities such as SAFE and MOFCOM have issued various rules and guidelines aiming to streamline cross-border flows of RMB. On June 8, 2011, PBOC published a most recent circular (1)("Circular") which clarifies several major issues relating to cross-border RMB transactions. Industry feedback regarding the Circular has been positive and the Circular has been interpreted as "a significant step towards the internationalization of RMB" by the market.

Continue Reading PBOC New Rules to Boost RMB Cross-border Transactions

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?

作者：尤杨、蔺楷毅 金杜律师事务所公司组

房地产集合资金信托产品是指信托公司从多个委托人（也是“投资人”，相对于单一信托而言）处募集资金，用于与房地产公司合作开发房地产项目，获得收益后支付给委托人作为投资回报的信托计划，常见形式有特定资产收益型、股权投资型、贷款型以及复合型等。

一、各类房地产信托产品的共同风险

Continue Reading 房地产信托产品的风险概要（1）

作者：张毅 金杜律师事务所公司组

2011年8月25日，商务部公布了《商务部实施外国投资者并购境内企业安全审查制度的规定》（下称“规定”），并将于2011年9月1日正式实施。《规定》表示，凡属于上述安全审查范围的企业，外国投资者应向商务部提出并购安全审查申请。对属于并购安全审查范围的并购交易，由商务部在15个工作日内书面告知申请人，并在其后5个工作日内提请联席会议进行审查。《规定》还称，外国投资者不得以任何方式实质规避并购安全审查，包括但不限于代持、信托、多层次再投资、租赁、贷款、协议控制、境外交易等方式。

Continue Reading 《商务部实施外国投资者并购境内企业安全审查制度的规定》：外资境内并购管理正式走上法律层面

By Zhang Yi of King & Wood’s Corporate Group

On August 25, 2011, the Ministry of Commerce (MOFCOM) promulgated the Provisions on Implementation of Security Review System Regarding Mergers and Acquisitions of Domestic Enterprises by Foreign Investors ( “Provisions”), which will become effective on September 1, 2011. The Provisions state that foreign investors must file an application for security review with MOFCOM for merger and acquisition (“M&A”) transactions that fall within the scope of security review. If a given M&A transaction is within the scope of security review, MOFCOM will inform foreign investors within 15 working days of the application being filed, and submit the application to the Joint Ministerial Panel for security review within 5 working days. The Provisions also state that foreign investors must not use any means, including but not limited to nominee shareholdings, trusts, multi-tier investments, leasing, loaning, control agreements, and offshore transactions, to evade M&A security review.

Continue Reading China Enhances the Legal Administration and Security Review of Inbound M&A Transactions

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

作者：楼仙英、 俞涤清 金杜律师事务所知识产权组

 

职务发明是企业的重要无形资产之一，如何区别职务发明和非职务发明极为重要。《专利法》(1)和《合同法》对职务发明都作了原则性的规定，但现实中许多问题无法从法条中直接获得解答，比如，哪些发明人是职务发明意义上的“员工”，“职务”如何解释等问题。所以，以职务发明为争议点的确权诉讼不胜枚举。本文通过案例的分析，归纳出认定职务发明的要点，并从企业的角度出发提出一些预防纠纷的建议。

Continue Reading 如何解读职务发明

by Cecilia Lou and Vincent Yu of King & Wood’s Interllectual Property Group

Service inventions created by employees ("Service Invention") are valuable intangible assets for employers, which makes it important to distinguish Service Invention from non-service invention. The Patent Law of the People’s Republic of China ("PRC Patent Law")(1)provides a rudimentary definition of Service Invention leaving many questions unanswered, such as what is the definition of "employee" for purposes of defining Service Invention, and what "tasks of the Entity" should include. Due to those uncertainties, many disputes arise as to the ownership of the right to patent inventions. This article summarizes the requirements and burden of proofs of Service Invention by analyzing actual cases, followed by a comprehensive strategy to avoid those disputes from the perspective of an employer.

Continue Reading How to Interpret Service Invention in China