By Susan Ning, Shan Lining and Angie Ng
Pursuant to the Anti-Monopoly Law, transactions which are construed as "concentrations" (i.e. mergers, acquisitions and joint ventures) and which meet with specified turnover thresholds 1; must be notified to, and cleared (from an antitrust law perspective) by MOFCOM, before business operators can go ahead with these transactions (notifiable concentrations).
By Susan Ning, Zheng Ziqing and Angie Ng
On 3 June 2011, the Ministry of Commerce (MOFCOM) published, for public comments, draft rules which explain how MOFCOM will evaluate concentrations pursuant to the merger control regime. These rules are entitled "Provisional Rules on the Assessment of the Effects of Concentrations on Competition" (Draft Rules). The public has been invited to submit comments on these Draft Rules by 13 June 2011.
In fact, Article 27 of the Anti-Monopoly Law (AML) outlines a list of factors that MOFCOM would take into account, when assessing concentrations. These are: (a) the market shares of the business operators involved in the concentration and their control over the market; (b) the degree of market concentration; (c) the impact of the concentration of business operators on market entry and technological advancement; (d) the impact of the concentration on consumers and other relevant business operators; (e) the impact of the concentration of business operators on the development of the national economy; and (f) any other factors deemed by MOFCOM to be relevant for consideration. The Draft Rules expand on these factors. There are altogether 14 provisions in the Draft Rules. The following table provides an illustration of how the Draft Rules "expand" on the factors set out in Article 27 of the AML.
Continue Reading Draft Merger Control Rules Published For Comments
Susan Ning and Yin Ranran
On 3 June 2011, Mr. Shang Ming, Director General of MOFCOM’s Anti-Monopoly Bureau revealed the latest figures to do with merger control at the 7th International Symposium on Competition Law and Policy hosted by the Chinese Academy of Social Sciences.
Continue Reading 240 Merger Control Cases Cleared by MOFCOM thus far
By Susan Ning, Liu Jia and Angie Ng
The National Development and Reform Commission (NDRC) has co-organised a conference focusing on price related monopoly agreements with the European Commission Directorate-General for Competition (DG Competition). The conference took place from 1 to 2 June 2011.
Antitrust authorities from the following jurisdictions attended this conference: the European Union, the United States of America, Germany, Spain, Ireland, Australia, Greece. From China, officials from several government agencies attended the conference, including officials from: the Law Committee of the National People’s Congress, the Supreme People’s Court, Legislative Affairs of the State Council, the NDRC, the Ministry of Industry and Information Technology, the Ministry of Commerce, the State of Administration of Industry and Commerce, and pricing authorities based in Beijing, Tianjin and Shanghai. Other attendees include representatives from China Consumers’ Association, China Cleaning Industry Association and academics.
By Susan Ning, Chai Zhifeng and Angie Ng
On June 2, 2011, Ministry of Commerce (MOFCOM) publicly announced the first conditional merger clearance in 2011. At its [2011] No. 33 Announcement, MOFCOM cleared Uralkali’s proposed acquisition of Silvinit (the Parties) (both potash producers based in Russia) with conditions. This is the 7th conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. MOFCOM is obliged by statute to publish conditional clearances.
The following are the salient points to note vis-à-vis this conditional clearance:
Continue Reading The Russian Potash Deal – first conditional clearance of 2011
2005年修订的《中华人民共和国公司法》（1）（下称“《公司法》”），对我国公司法律制度作出较大调整和完善，增加了公司纠纷的可诉性。但由于《公司法》的一些规定过于概括性、原则性甚至宣示性，司法实践中对公司诉讼案件同案不同判的现象比较常见。为解决《公司法》理解和适用的统一问题，指导司法实践和公司相关主体的商事活动，最高人民法院此前先后对《公司法》做出两个司法解释（2），重点明确《公司法》适用的一些基本原则和公司解散、清算问题。2011年2月16日，最高人民法院颁布《关于适用<中华人民共和国公司法>若干问题的规定（三）》(下称“司法解释（三）”)，对公司成立前债务承担、出资和股权确认等实践中争议较大的问题作出解释。本文试从实务角度对司法解释（三）进行解读。
By Zhang Baosheng, a partner of King & Wood’s Dispute Resolution Group
In 2005, China amended its Company Law(1)and made substantial adjustments to the State’s company law system and strengthened the justiciability of company related disputes. However, some provisions of the amended Company Law are overly general, conceptual and declaratory, and as a result it is not uncommon to find disparate outcomes in similarly situated cases. In order to ensure uniform understanding and application of the Company Law and provide guidance for judicial practice and commercial activities, the Supreme People’s Court (the "Supreme Court") issued two judicial interpretations of the Company Law(2), mainly clarifying certain fundamental principles of applying the Company Law and specific matters like dissolution and liquidation of companies.
域名具有标识功能，当域名与他人在先拥有的商标、企业名称或其他民事权益发生冲突时，这些在先权利的权利人（以下简称“权利人”）的法律救济途径有两条：一是向域名争议解决机构投诉，二是向法院起诉或向仲裁机构提起仲裁（基于双方之间达成的仲裁协议）。通常情况下，出于控制成本和节省时间的考虑，权利人会首先选择域名争议程序，当然前提是被抢注的域名注册时间不超过两年。但在域名争议解决程序进行中，或者专家组作出裁决后，投诉人（即权利人）或者被投诉人（即域名持有人）均可以就同一争议向中国互联网络信息中心所在地的中国法院提起诉讼，或者基于协议提请中国仲裁机构仲裁。对于域名争议解决中心已经作出裁决，被投诉人又向法院起诉的，则面临域名争议裁决与司法裁判的衔接问题。笔者提出下面两个问题，旨在抛砖引玉，希望引发更多的探讨。
By: Susan Ning, Angie Ng and Shan Lining
Last week (between 26 to 27 May 2011), it was reported in the press that Unilever has raised the prices of specific products (including Lux and Hazeline branded shampoos and shower gels) by 10% in some cities including Beijing, Shanghai and Guangzhou (Unilever’s price increases). This was touted as a surprising move given that Unilever was recently fined by the price authority, the National Development Reform Commission (NDRC) in relation to conduct to do with its proposed price increases just earlier in the month (see below for more details to do with this fine) (Unilever’s price signaling conduct).
This article outlines details to do with Unilever’s price signaling conduct and subsequent price increases and examines whether or to what extent such conduct would be considered in breach of the Price Law and the Anti-Monopoly Law in China.
Continue Reading Price signaling and price hikes – a breach of the Price Law or Anti-Monopoly Law?
By: Susan Ning, Shan Lining and Angie Ng
On 6 May 2011, the National Development and Reform Commission (NDRC) announced that a manufacturer of household and personal care products (the Manufacturer) has been fined a total of RMB2 million for breaching the Price Law. The NDRC also appeared to have made some Anti-Monopoly Law (AML) references in relation to this case.