By Susan Ning, Tao Huang, and Yang Yang

As was the case throughout the world, the global economic downturn beginning in 2008 caused many in the Chinese market to face difficulties in fully performing executory contacts which had been formed prior to the crisis. As such, many parties to such contracts requested modification or even rescission of their contracts under the changed circumstances. As a response to these trends, the Judicial Interpretation on Contract Law II was issued by the Supreme People’s Court of the People’s Republic of China (hereinafter the “SPC”) to further clarify certain legal rules under current Chinese Contract Law . In particular, Article 26, Chapter 4 of the Judicial Interpretation on Contract Law II (hereinafter “Article 26” or the “Fundamental Change in Circumstances” Provision") provides guidance on a party’s right to modify or rescind a valid contract when a Fundamental Change of Circumstances occurs after contract formation. A Fundamental Change of Circumstances in this regard is differentiated from a force majeure event and does not cover changes that may arise from normal commercial risks, and under which the purpose of the contract would be frustrated or performance will result in extreme unfairness.

Continue Reading New Provision Could Change Contract Law in China but Judges Remain Conservative

By: Susan Ning, Shan Lining and Angie Ng.

On 12 November 2010, Professor Huang Yong (University of International Business and Economics) gave some comments to the media1 on the QQ-360 disputes (see our previous article entitled “The QQ/360 disputes”).

Professor Huang made the point that industries like the technology and internet services industries develop and change so quickly that by the time either party (i.e. QQ or 360) or a third party brings a claim (pursuant to the Anti Unfair Competition Law (AUCL)) to the courts and receives remedies (e.g. damages), the industry might have changed so much that either one or both of these parties might have been “driven” out of the industry. By contrast, in his comments, Professor Huang spoke about “public enforcement” being a more “efficient” route of enforcing the AUCL.

Continue Reading Private vs public enforcement pursuant to the Anti-Unfair Competition Law and Anti-Monopoly Law

By: Susan Ning, Ding Liang and Angie Ng.

Recently, the disputes between Tencent’s QQ and Qihoo’s 360 software have caused quite a stir in the press (see our article entitled “QQ vs 360 – an anti unfair competition case”.

We set out the “whos”, “whats”, “where” and “when” or the background to these disputes. We also provide our preliminary views or analysis re these disputes vis-à-vis the Anti Unfair Competition Law (AUCL) and the Anti-Monopoly Law (AML).

Continue Reading The QQ / 360 Disputes – Who, What, Where, When and Preliminary Antitrust Analysis

Interview of Roy Zhang of King & Wood’s Banking Department by Zhang Tianhui and He Ran of King & Wood’s Publications Group

Financing is a critical consideration in M&A transactions. For a long period of time, financing large scale strategic M&As of listed companies in China has been a bottleneck. As such, it is important for companies to study successful M&A experiences from abroad and develop additional venues and tools for financing and venues for such transactions.

Continue Reading Financing Mergers & Acquisitions in China Today

By: Susan Ning and Shan Lining.

On 30 October 2010, it was reported in the press1 that the People’s Court has thus far accepted 11 antitrust cases (for the period 1 August 2008 to June 2010). Out of these 11 cases, 10 were antitrust civil cases (see our previous article entitled Two Years on, Ten Antitrust Private Actions) and 1 was an antitrust administrative action.

Continue Reading 11 Private Antitrust Cases Lodged; Judicial Interpretations Coming Up

By: Susan Ning and Liu Jia.

On 3 November 2010, it was reported in the press1 that the Changsha Yuelu District People’s Court (in Hunan province) accepted the court’s first private antitrust claim. The antitrust claim was formally accepted by the court 1 November 2010 and is an abuse of dominance case.

Continue Reading Hunan Province’s First Private Antitrust Case

By Susan Ning, Ding Liang and Angie Ng, King & Wood’s Competition Practice.

In late August 2010, it was reported in the press that at least 10 antitrust private actions have been heard in the courts in China (see Two years on, ten private antitrust action

This article describes one of the cases, Zhou Ze v. China Mobile Beijing (the Zhou Ze case), in detail. This was an alleged abuse of dominance case – which was later settled.

Continue Reading Zhou Ze v. China Mobile Beijing – Alleged Abuse of Dominance Case

By Susan Ning, Shan Lining and Angie Ng, King & Wood’s Competition Practice.

On 26 October, a couple of Chinese airlines, including Air China, China Eastern Airlines, Shandong Airlines, Xiamen Airlines, Hainan Airlines, Capital Airlines and Shenzhen Airlines announced, separately, that they were going to raise passenger fuel surcharges for domestic flights.(1)  

 

Continue Reading Passenger Fuel Surcharge Hikes

By Meg Utterback and Ding Liang of King & Wood’s Cross border dispute resolution Practice

As the United States mid-term elections draw near, we can expect greater protectionist measures from the US government in an effort to appease voters who are demanding an improvement in the US unemployment statistics. One such protectionist measure is the initiation of the recent 301 investigation relating to allegations that the Chinese clean technology and renewable energy sectors are being unfairly advantaged by government subsidies.   Almost all countries are subsidizing the renewable sector in one form or another in hopes of easing the world’s dependence on fossil fuels. It seems however that the US has taken umbrage with the extent of Chinese programs supporting the clean technology and renewable energy industries.

Continue Reading China Clean Tech at Risk– Initiation of the Recent Section 301 Investigation

胡梅、叶渌、罗必成  金杜跨境争议解决组

不管是诉诸法院或通过仲裁，大部分案件都能达成和解。从纠纷出现到最终裁决，当事人会权衡各种因素，并在过程中不断进行成本效益分析。一般来说，原则和先例等问题可能会阻碍争议的解决。如果违反内部原则（如“无责任即拒付款，甚至名义付款”），或开创不好的先例（如为被解雇员工支付超出法定要求的赔偿金），当事人不会考虑和解。另一个主要因素通常是市场和业务战略。多年来，许多中国当事人对发展国外业务没有兴趣，所以他们选择不参与海外仲裁。此外，诉讼成本也必须被充分考虑到。在现今的全球化经济环境下，企业可能会面对来自多个司法管辖区（如英属维京群岛、香港及中华人民共和国）、牵涉类似事实和有关当事人的诉讼。由于涉及多个司法管辖区的诉讼费用高昂，这类情况促使当事人更愿意达成和解。本文旨在提供一些实务技巧，供大家在仲裁之前及仲裁期间寻求和解作为参考。

Continue Reading 仲裁谈判实务技巧