anti-monopoly law

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By Susan Ning and Hazel Yin

On April 18, the Guangdong Higher People’s Court held the first court hearing for the abuse of dominance action filed by Qihoo(the operator of 360 safety software)against Tencent(the operator of QQ instant messaging software)under the Anti-Monopoly Law ("AML"). Qihoo accused Tencent for abusing its dominance in the market of online instant communications services and claimed damages of RMB 150,000,000. The court hearing lasted for more than 8 hours, and attracted an audience of almost 400 people. 

As requested by the court, the hearing was divided into four sessions, dedicated to each of the four issues: market definition, dominant position, abusive conducts and legal liabilities.  The hearing focused on the first three issues and both sides called in expert witnesses and had fierce debates over each of these issues.Continue Reading 360 v. QQ-Abuse of Dominance Action Tried at Guangdong Higher Court

By Susan Ning, Liu Jia and Huang Jing

On April 24, 2012, TV.SOHU.COM, v.QQ.COM,and iQIYI.COM (the specialized video website of Baidu)jointly announced the establishment of an alliance called "Video Content Cooperation" (VCC) for vedio copyright joint purchasing. The VCC is viewed as another "faction" after the recent combination of Youku and Tudou. It is reported that the main purpose of the VCC is to jointly purchasing the copy right for their own each website.1  

TV.SOHU.COM, v.QQ.COM, and iQIYI.COM are all internet video websites and are close competitors. Their cooperation may affect the competition status in the market. This article will analyze under the Anti-Monopoly Law (AML) whether joint purchase arrangement could constitute "horizontal monopoly agreement".Continue Reading Joint purchasing under the AML-SOHU, QQ and Baidu launched Video Content Cooperation Alliance

By Susan Ning, Wu Han, and Sun Yiming

On 13 March, Mr. Zhang Guangyuan, Deputy Director of the Anti-monopoly Bureau of the National Development and Reform Commission (NDRC) spoke on the latest development of NDRC’s antitrust investigation on China Telecom and China Unicom. Mr.Zhang said that the two companies have so far completed a 100G bandwidth expansion and committed to further reduce the internet access service charges. The Anti-monopoly Bureau of the NDRC will continue to press for rectification and reform of the two companies.

This investigation was initiated last April, targeting at China Telecom and China Unicom for their alleged abuse of market dominance in the Internet access market by administering price discrimination against different Internet service providers (ISPs)1. On December 2, 2011, the two companies publicized statement on their websites saying they have submitted applications to the NRDC for suspension of the antitrust investigation and decided to correct their misconduct, but NDRC demanded more concrete pledges.Continue Reading Latest Development re NDRC’s Antitrust Investigation against China Telecom

By Susan Ning, Ji Kailun and Hazel Yin

On March 2nd, 2012, the acquisition by Western Digital ("WD") of Hitachi Global Storage Technologies ("Hitachi") finally received conditional nod from the Ministry of Commerce ("MOFCOM"), three month after MOFCOM conditionally cleared the Seagate/Samsung deal1 .

Review Timeline

According to MOFCOM’s announcement 2, this review process is particularly lengthy: the first submission was made on April 2nd, 2011, while the clearance was obtained 11months later.  During this period, this filing was withdrawn by WD shortly before the expiry of the Extended Phase II due to "significant changes of facts".  On November 7th, 2011, WD re-submitted the notification and the filing was cleared at the end of the second round of Phase II.Continue Reading Western Digital/Hitachi Received Conditional Nod from MOFCOM

By Susan Ning and Liu Jia

Most recently,a piece of news related to the Anti-Monopoly Law ("AML")indicates that, the National Development and Reform Commission("NDRC")who is in charge of the implementation of the Price Law and price-related antitrust violation, communicated with the State Administration of Radio, Film, and Television("SARFT")1, for SARFT’s proposed draft of Guidance on Further Regulation of Movie Ticket Business("draft Guidance").It is reported that SARFT is suspected of abusing its administrative power for fixing the price of movie tickets.
 

Fact
 

On 26 February 2012, the draft Guidance was posted on the internet by a micro-blogger. According to the draft Guidance, SARFT divides the sales market of movie tickets into several districts, and sets the guided price (i.e.highest retail price) of movie tickets for each of the district.  It also provides that the movie tickets for theater members and group buyers should not be sold for less than 70% of the listed price.Continue Reading Does SARFT Have the Authority to Regulate Movie Ticket Price?

By Zeng Xianwu King & Wood’s Foreign Direct Investment (FDI) Group

Since the reform and opening-up policy was introduced in 1978, especially in the past ten (10) years, the People’s Republic of China (the "PRC" or "China") has undergone significant changes.  China is a growth engine for the worldwide economy, fueling global expansion via higher output and trading relationships with other nations as well as greater contributions from domestic consumption.  Over last nine (9) months of 2011, China has already attracted contractual inbound foreign direct investment of USD177.8 billion.  Notwithstanding China’s status as one of the world’s largest economies, and the massive amounts of foreign money invested in China, the basic laws and rules in China governing foreign investment seems mysterious for those who want to invest in China or are accustomed to laws of their countries.Continue Reading Overview of Doing Business in China

By Susan Ning, Liu Jia and Hazel Yin

China Securities Regulation Commission ("CSRC") is the authority in charge of supervising Chinese listed companies.  In August 2010 and November 2011, CSRC published on its website two FAQs addressing application of the merger control regime under the Anti-Monopoly Law ("AML") to listed companies.
 Continue Reading CSRC’s Guidance on Merger Control of Listed Chinese Companies

By Susan Ning, Liu Jia and Hazel Yin

On February 9, 2012, the Ministry of Commerce ("MOFCOM") published its first conditional clearance decision in 2012, approving the proposed joint venture ("JV") established by Henkel Hong Kong Holdings Co., Ltd. ("Henkel HK") and Tiande Chemical Industry Co., Ltd. ("Tiande") ("Transaction").  This is the second conditional clearance decision in relation to a joint venture and reaffirms MOFCOM’s approach that formation of a joint venture does constitute a notifiable transaction under the Anti-monopoly Law ("AML"). 1

Review Process.  MOFCOM received the notification on 8 August 2011 and  officially accepted it on 26 September 2011.  The case entered into Phase II on 25 October 2011 and the parties submitted the proposed remedies on 13 January 2012, shortly before MOFCOM decided to extend the Phase II period for another 60 days on 19 January 2012. On 9 February 2012, MOFCOM made the final decision to approve the Transaction with conditions.Continue Reading MOFCOM Issued the Second Conditional Clearance on Joint Venture

作者 宁宣凤、吉凯伦、尹冉冉

        2011年12月30日，商务部发布了《未依法申报经营者集中调查处理暂行办法》（“暂行办法”），将于2012年2月1日正式实施。该暂行办法就达到申报标准但未依法申报的经营者集中，规定了调查处理程序。

        根据暂行办法，任何单位和个人均有权向商务部举报涉嫌应报未报的经营者集中，商务部也可能通过其他途径获得相关信息。如果有初步事实和证据表明存在未依法申报嫌疑，商务部就应当立案，并书面通知被调查的经营者。Continue Reading 商务部将加大未依法申报经营者集中查处力度

By Susan Ning, Ji Kailun and Hazel Yin

On 30 December 2011, the Ministry of Commerce ("MOFCOM") promulgated the Interim Measures on Investigation and Punishment of Failure to Duly Notify Concentrations of Undertakings (《未依法申报经营者集中调查处理暂行办法》, "Interim Measures"), effective from February 1, 2012.1   The Interim Measures set down the procedures for MOFCOM to investigate and penalize companies for failure to notify a notifiable transaction in violation of the Anti-Monopoly Law ("AML").

According to the Interim Measures, MOFCOM shall initiate an investigation ("case acceptance") if there is prima facie evidence, either presented by any third party or it obtains through other channels, indicating that a company fails to notify a notifiable transaction. 
 Continue Reading MOFCOM Getting Tough on Failure to Notify a Concentration