By Liu Cheng Swita Gan Yu Zhenzhen King&Wood Mallesons’ M&A Group

S001ince the Anti-monopoly Law of the People’s Republic of China[1] (“AML”) came into effect, there has been much debate about the circumstances in which minimum resale price maintenance (“RPM”) will constitute a vertical monopolistic agreement prohibited by Article 14 of the AML. In the debate, the most contentious issue is whether RPM should be regarded as per se illegal or if the “rule of reason” doctrine[2] should be adopted to assess on a case-by-case basis, whether the RPM is illegal.

In reviewing the AML, it can be seen that RPM is one kind of vertical monopolistic agreement, as categorized by Article 14 of the AML. Article 13 of the AML defines monopolistic agreements as “agreements, decisions or other concerted practices that eliminate or restrict competition”. This definition apparently covers vertical monopolistic agreements listed in Article 14. However, opinions differ when it comes to assessing the illegality of RPM. The different opinions can be simplified into two distinct lines of thought: (i) whether the act of RPM is a monopolistic agreement that eliminates or restricts competition definitely with no need to further decide its effect on competition (i.e. to adopt the per se illegal rule) or (ii) whether the act of RPM itself should not be deemed as illegal and a rule of reason approach should be adopted to comprehensively evaluate its effect on market competition, to determine whether or not it constitutes an illegal monopolistic agreement.
Continue Reading Still Unclear Path Forward – Resale Price Maintenance under the AML and Recommendations for Companies

作者:宁宣凤尹冉冉、郑孜青、吉凯伦

《中华人民共和国反垄断法》(以下简称《反垄断法》)自2008年8月1日起实施生效,至今已满5周年。5年来,商务部作为经营者集中审查的主管机关,共审结了逾640起交易,除19起获得附条件批准的交易和1起受到禁止的交易外1,其他交易均获得了无条件批准。5年时间,反垄断的概念在各界的争议和探讨中逐渐深入人心,而商务部的执法能力亦随着实践不断提高,经营者集中附加限制性条件制度也日趋成熟。本文从实务工作者的角度简要回顾和总结经营者集中审查制度及附条件执法的实施情况,以期为企业带来一二启示。
Continue Reading 中国经营者集中审查及附条件执法五年综述

By Susan Ning, Hazel Yin, Ziqing Zheng, Kailun Ji

August 1st, 2008 marks the fifth anniversary of China’s Anti-Monopoly Law (“AML”).  Along with debates and controversies, the AML is gradually taking root and has contributed to shaping the economic landscape and competition status in China.

During the past 5 years, the Ministry of Commerce (“MOFCOM”), the authority in charge of merger control, has cleared more than 640 cases, including 19 cases that were cleared with conditions and 1 case that was denied.1   MOFCOM has been making continuous progress in improving its enforcement capabilities, which are highlighted by the increasingly mature merger remedy regime.  This article presents an overview of the merger control regime, in particular the merger remedies regime in China from the perspective of practitioners.
Continue Reading Review of Merger Control and Merger Remedies Regime in China: From 2008-2013

By Susan Ning, Liu Jia, Xiao Dasha and Hazel Yin

On 1 August 2013, the very same day of the fifth anniversary of China’s Anti-Monopoly Law (“AML”), Shanghai Higher People’s Court (“Shanghai Higher Court”) made a final judgment on the Rainbow v. Johnson & Johnson case.  It is the first case of vertical monopolistic agreement and the court overruled the judgment of the first instance, and ruling for the appellant (i.e., the plaintiff). This case is also the first anti-monopoly case in China where the second-instance court reversed the judgment of the first instance court and ruled in favor of the plaintiff.
Continue Reading Chinese Court Rendered Final Judgment on Rainbow v. Johnson & Johnson – the First Antitrust Private Action of Vertical Monopolistic Agreement

作者:宁宣凤刘佳尹冉冉

2013年8月1日,也即在《反垄断法》实施五周年的纪念日当天,上海市高级人民法院对全国第一起纵向垄断协议案件(锐邦诉强生案),作出终审判决——判决上诉人(也即原告)胜诉。本案也是迄今为止第一起二审法院撤销一审判决并判决原告胜诉的反垄断民事案件。
Continue Reading 第一起纵向垄断协议民事诉讼案件:锐邦诉强生固定转售价格案简析

By Susan Ning, Kate Peng, Huang Jing and Li Rui

In May 2013, the National Development and Reform Commission (“NDRC“) initiated the investigation against several infant formula companies for the alleged violation of Article 14 of the Antimonopoly Law (“AML“).

This is the second investigation by NDRC against resale price maintenance (“RPM“).  Early this year, NDRC fined China’s famous producers of premium liquor, Kweichow Moutai Co Ltd. (Maotai) and Wuliangye Group Co., Ltd. (Wuliangye) in the amount of RMB 247 million (about USD 39.8 million) for RPM behaviors (Maotai/Wuliangye Case)i .  The current investigation is still ongoing and no penalty against any companies has been made. 
Continue Reading The Second RPM Investigation by NDRC within this Year

By Susan Ning and Hazel Yin

August 1, 2012 marks the fourth anniversary of China’s Anti-Monopoly Law (“AML”). 1 With only 57 articles, the AML introduces a series of new regimes governing not only transactions but also day-to-day operations of domestic and foreign companies.  This article presents an overview of how the AML has been implemented so far, with particular focus on the latest development, and where it may go in the near future.   

Merger Control

The Ministry of Commerce (“MOFCOM”) is responsible for reviewing concentration of undertakings that trigger a certain turnover thresholds. 
Continue Reading China’s Anti-Monopoly Law: Retrospect and Prospect on the Fourth Anniversary

作者:宁宣凤   尹冉冉    金杜律师事务所反垄断组

至2012年8月1日,《中华人民共和国反垄断法》(以下简称《反垄断法》)实施已满四年。1虽然仅有57条,但《反垄断法》确立了一系列崭新的制度,其适用对象不仅包括国内公司,也包括境外企业,适用范围不仅涵盖公司的日常运营,也包括公司间的交易行为。本文简要回顾《反垄断法》四年的实施情况,并对其实施趋势予以展望。

一、合并控制

经营者集中在达到一定营业额标准后,需提交商务部进行经营者集中的反垄断审查。自2008年8月1 日以来,商务部累计审查逾450起交易,其中95%以上的交易获得无条件批准。截至2012年8月1日,商务部已附条件批准14起交易,禁止1起(可口可乐收购汇源)。Continue Reading 中国反垄断法实施四周年回顾与展望

By Susan Ning, Sun Yiming and Liu Jia

On December 7, the Provisional Measures on Investigating and Penalizing Violation of Notification Obligations for Concentrations between Business Operators (Provisional Measures) were reviewed and discussed at the No. 57th Ministerial Affairs Meeting of the Ministry of Commerce (MOFCOM) and were passed in principle.1  

It was discussed at the meeting that currently companies frequently ignore their merger control notification obligations under the Anti-Monopoly Law which has caused negative social impact.  Under such circumstances, the Provisional Measures are expected to strengthen MOFCOM’s enforcement in relation to investigation and punishment for those companies who fail to honor their notification obligations.Continue Reading MOFCOM Passed Provisional Rule on Failure to Notify on Concentration

By Susan Ning and Huang Jing

On 7 September 2011, the Shanxi Combined Transportation Group Company (SCTG) filed an administrative law suit with the Taiyuan Xinghualing District People’s Court against the Taiyuan Bureau of Railways (the "SCTG Case"). On 15 September 2011, the Taiyuan Xinghualing District People’s Court accepted the SCTG Case.

SCTG alleged that it had submitted two applications to the Taiyuan Bureau of Railways for establishing new railway ticket agent stores on 25 January 2011; but Taiyuan Bureau of Railways did not respond to such applications.  According to SCTG, Taiyuan Bureau of Railways’ conduct was a violation of the Anti-monopoly Law (AML), and constituted administrative omission.   Thus SCTG filed the administrative lawsuit.Continue Reading Taiyuan Bureau of Railways Sued for Antitrust Violation