On 16 November 2016, the State Administration for Industry and Commerce of the People’s Republic of China (“SAIC”) published its administrative penalty decision to fine Tetra Pak (“TP”) for abuse of dominant market
On 1 November 2014, the People’s Congress of China approved proposed amendments to China’s Administrative Procedure Law (“APL”) respect of private actions against government agencies for abuses of administrative powers.
Although the AML includes an entire chapter addressing abuses of administrative powers, the provisions are considered to be somewhat lacking in bite. The antitrust enforcement authorities are only authorized to provide advice to the body responsible for a government agency which is alleged to have abused its administrative powers. The antitrust authorities are unable to take any action against, or impose any penalties on, the agency themselves. In addition, to date there have been very few private enforcement actions against government agencies as the existing legislation makes it difficult for individuals and entities to bring such actions.
The reforms, which are explained in this article, are intended to rectify the status quo and will take effect from 1 May 2015.
Continue Reading China Toughens Up on Abuses of Administrative Powers
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 Liu Cheng, Yu Zhenzhen, Swita Gan
Non-compete clauses (“NCCs”) are very often included in joint venture (“JV”) contracts in the course of JV establishment. NCCs normally operate to prevent JV parties from engaging in business in competition with the JV entity, for a specified period and within a specified geographical area.
The PRC Anti-monopoly Law[i] (“AML”) came into effect in 2008, and since then PRC competition authorities have issued a number of rules and regulations in connection with the AML. However, none of these rules and regulations (including the AML itself) sets forth specific provisions regarding the regulation of NCCs in JV contracts. As such, this article considers the legality of NCCs under the AML and the basic principles for the negotiation of NCCs in JV transactions.
Continue Reading Non-compete clauses in JV contracts —— An analysis from the perspective of the PRC Anti-monopoly Law
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
On July 17th, People’s Daily reported that the Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission is investigating gold retailers including but not limited to Shanghai Lao Feng Xiang (600612. SH) and Yuyuan Tourist Mart Company (600655.SH) for manipulation of gold jewelry retail price in Shanghai under the auspices of the Shanghai Gold & Jewelry Trade Association (“SGJTA”).
Continue Reading NDRC Probes Shanghai Gold Association and Gold Retailers for Price Fixing
On May 29, 2013, the National Development and Reform Commission (“NDRC“) and the Civil Aviation Administration of China (“CAAC“) held a seminar discussing the potential issues in setting up an antimonopoly immunity scheme under Chinese Antimonopoly Law (“AML“). Chinese regulators and representatives from the International Air Transport Association (“IATA“) participated in the seminar and exchanged views on the antimonopoly review policy in the aviation industry and the possible outlooks of the contemplated immunity scheme. The immunity scheme under consideration, once came into effect, could have material effects on the cooperation between airlines operators.
Continue Reading Chinese Regulators Contemplate Antimonopoly Immunity Scheme for Airline Operators
By Susan Ning, Li Rui and Hazel Yin
On January 5th, 2013, the Xi’an Intermediate People’s Court (the “Court”) ruled in favor of a consumer who sued Shanxi Broadcast & TV Network Intermediary (Group) Co., Ltd. (“Network”), the local cable service provider, for tie-in and imposing unreasonable sales conditions by tying basic cable services with digital channel services. The Court found that the Network’s practice of selling basic cable services on the condition that the subscribers also purchase digital channel services violated Article 17(5) of the Anti-Monopoly Law (“AML”) regarding tie-in sales and imposition of unreasonable trade conditions. In reaching this decision, the court reasoned that because the Network is a lawful monopoly in the local market for cable TV, its conditioning of the sale of basic cable service on the customer’s subscription for digital channels infringes upon the customer’s freedom of choice and diminishes consumer welfare.
Continue Reading Chinese Consumer Wins Abuse of Dominance Civil Action against Tie-in Sales in Program Bundling