By Xu Ping  Yao Lijuan  King&Wood Mallesons’ Mergers & Acquisitions Group

In the wake of recent heightened anti-monopoly investigations and enforcement in the PRC auto industry, there have been a number of new regulations being passed by the legislators particularly in the auto distribution and aftermarket sector. It is envisaged that a new regulatory framework over auto distribution and aftermarket may take shape in the near future.

1. New Legislative Developments

(1) Abolishment of the SAIC Record-filing of Auto Brand Authorized Dealers
Continue Reading New Regulatory Framework on Auto Distribution and Aftermarket to Take Shape

By Susan Ning, Kate Peng and Chai Zhifeng

On August 27, 2013, MOFCOM announced its conditional clearance on MediaTek Inc’s (“MediaTek”) 4 billion USD acquisition of MStar Semiconductor Inc (“MStar“) (the “Transaction“). This is the second “hold-separate” case since this year (the other one is Xstrata/Glencore), and the forth one in China’s merger filing history. 1 MOFCOM appears to be getting more and more confident with the “hold-separate” arrangement as a behavior remedy to address competition concerns.  It is also worth to note that the parties are required to submit detailed operation plan within three months of the decision and the transaction can only be closed after the detailed operation plan is approved by MOFCOM.


Continue Reading Another “Hold-Separate” Decision of MOFCOM—MediaTek’s Acquisition of MStar is Cleared with Conditions

作者:宁宣凤彭荷月、刘佳、萧达莎

        经过十几年的孕育和酝酿,《反垄断法》于2008年8月1日生效实施。这不但是我国法制建设发展的阶段性成果,更是中国市场经济发展的里程碑事件。《反垄断法》共8章57条,确立了一系列崭新的制度——不但反经济垄断,也反行政垄断;不仅有域内效力,还有域外效力;不但确立了公共实施,也肯定了私人执行。所谓反垄断公共实施(public enforcement),即指国家赋权的反垄断执法机构开展的反垄断行政调查执法活动;所谓反垄断私人执行(private action),那些自身利益受到反竞争行为影响的法人或自然人通过向法院提起民事诉讼来执行《反垄断法》的。在过去五年中,反垄断公共实施和私人执行共同构建和促进了我国《反垄断法》的实施。这两者相辅相承、相互补充,共同承担着《反垄断法》预防和制止垄断行为,保护市场公平竞争,提高经济运行效率,维护消费者利益和社会公共利益的使命。

        《反垄断法》确立的反垄断民事诉讼与专门机构的反垄断行政执法相结合的“双轨制”符合当今世界各国和地区反垄断法实施的普遍做法和明显趋势,也是能够更为全面的在实践中切实落实《反垄断法》。然而,“双轨制”在实践也会存在一些问题,同一反垄断事件既在法院提起民事诉讼,又进行行政审查,难免有需要协调的方面。对于两个程序之间的协调,目前的一些规定虽然有所涉及,但仍有很多问题没有得到解决。本文意在对这些问题作一个梳理,希望能够抛砖引玉,同时也期待题述问题得以在实践中被司法机关和行政机构探索解决。

Continue Reading 《反垄断法》的双轨制——行政执法与民事诉讼的互动

By Susan Ning, Kate Peng, Jia Liu and Rui Li    King & Wood Mallesons’ Antitrust & Competition Group

After more than ten years of deliberation and discussion, Anti-monopoly Law of China (AML) finally came into effect on August 1, 2008. This is not only a periodic achievement in the development of Chinese legal system but also a milestone event since the establishment of Chinese market economy. AML contains eight chapters and fifty-seven articles and sets up a brand new mechanism against economic and administrative monopoly with both domestic and international reaches and private and public enforcement. Public enforcement refers to administrative investigation and enforcement activities initiated by anti-monopoly agencies duly authorized by the nation. Private action refers to anti-monopoly civil action filed at the court by the legal or natural person injured by the anticompetitive conducts. In the past five years, the public and private enforcement have worked in tandem to promote the enforcement of AML. The two enforcement methods complement each other to prevent the anticompetitive conducts violating AML, protect fair market competition, enhance market efficiency, and safeguard consumers’ interest and the public interest.   
Continue Reading The Dual System of Anti-monopoly Law – The Interplay between Administrative Enforcement and Civil Action

By Susan Ning, Kate Peng, Pulcheria Chung and Karen Ji

China’s Supreme People’s Court (“SPC”) issued its Provisions on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct (“SPC rules”) on May 3, 2012, effective on June 1, 2012.  Article 7 of the SPC rules differentiates between horizontal and vertical monopolistic agreements with regard to the plaintiff’s burden of proof on the element of anti-competitive effect.  Horizontal monopolistic agreements falling within Article 13 of the AM are presumed to have the effect of eliminating or restricting competition, unless the defendants can demonstrate otherwise.  For vertical monopolistic agreements under Article 14 of the AML, no such presumption will be made. 

By implication, the above differentiation would mean that the plaintiff in a vertical monopolistic claim must prove (1) the monopolistic agreement falls within Article 14 of the AML; (2) the agreement has anti-competitive effects; (3) it suffered damages because of the monopolistic conduct.  Whereas the plaintiff in a horizontal monopolistic claim only needs to prove item (1) and (3) abovementioned, and the defendant has the rebuttal burden to prove that the agreement would not eliminate or restrict competition.
Continue Reading Burden of Proof in Monopolistic Agreement Claims

By Susan Ning, Hazel Yin and Yunlong Zhang

The year 2012 marks the fifth year of the enactment and implementation of China’s Anti-Monopoly Law (“AML”).  Over the past year, we have witnessed substantial progress of the merger control regime and antitrust administrative investigations, in particular in the area of cartel investigations.  With the promulgation of judicial interpretation of the Supreme People’s Court, antitrust civil litigations are also picking up.  As the Year of Dragon is coming to an end, we present this article with an overview of how the AML has been implemented in the past year, together with our observations.  

I. Merger Control

The Ministry of Commerce (“MOFCOM”), the authority in charge of merger control review, maintained a similar caseload in 2012 compared to 2011 and has been gradually establishing its international reputation as one of the most important antitrust authorities.  
Continue Reading The Anti-Monopoly Law of China: What We Have Seen in 2012?

By Susan Ning and Kate Peng
 
On Jan 4th, the National Development and Reform Commission (“NDRC“) published that they had imposed fines in a total amount of RMB 353 million (approximately USD 56 million) on 6 LCD panel manufacturers, including Samsung and LG of Korea and ChiMei, AU Optronics, Chunghwa Picture Tubes and HannStar from Taiwan region.  This is China’s first antitrust enforcement action against international cartels.  It also imposes the highest penalties in China’s antitrust enforcement history.

According to the press releases of NDRC on its official website 1, during the period from 2001 to 2006, the 6 LCD manufacturers, which accounted for about 80% of the global LCD panel market, convened 53 meetings in Taiwan and Korea to exchange market information and negotiate the price of LCD panels.  NDRC received complaints on the cartel from major Chinese TV makers in December 2006.  The TV makers also reported non-price related misconducts of the panel manufacturers, including providing an 18-month warranty only and failing to provide high-end products in a timely manner.
Continue Reading NDRC Imposed Stiff Fines on Multinational LCD Manufacturers in China’s First Antitrust Enforcement Action against International Cartels

By Susan Ning, Kate Peng and Yunlong Zhang

The Price Bureau of Guangdong Province (“GDPB“) recently published an article about an investigation in a price-fixing cartel among sea sand dredging companies on its official website 1.  According to the article, the price of sea sand in Guangdong province rose from around RMB20 per cubic meter to over RMB40 per cubic meter since 2009, which seriously affected the progress of many major infrastructure projects of the State.  This unusual trend attracted the attention of the government of Guangdong province.  In order to find out the reason behind the price increase, GDPB initiated an investigation in February 2012 under the guidance of the Price Supervision and Anti-monopoly Bureau of the National Development and Reform Commission (“NDRC“).
Continue Reading Price Bureau Uncovered and Punished a Price-Fixing Cartel under the Leniency Program

By Susan Ning and Ding Liang King & Wood Mallesons’ Antitrust Group

The Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct (“Anti-Monopoly Judicial Interpretation”), as adopted at the 1539th Session of the Judicial Committee of the Supreme People’s Court (“SPC”) in January 2012, were issued on May 3, 2012 and came into force on June 1, 2012. The Anti-Monopoly Judicial Interpretationreflects important experience accumulated in the judicial practice of monopoly civil disputes and is expected to play an important role in monopoly civil dispute cases. This article will briefly discuss the key issues involved in the Anti-Monopoly Judicial Interpretation. 

I .The Drafting Background of the Anti-Monopoly Judicial Interpretation
Continue Reading Commentary on the Anti-Monopoly Judicial Interpretation

作者:宁宣凤 丁亮 金杜律师事务所反垄断

《最高人民法院关于审理因垄断行为引发的民事纠纷案件应用法律若干问题的规定》(以下简称“反垄断司法解释”)已于2012年1月30日由最高人民法院审判委员会第1539次会议通过,于2012年5月3日公布,自2012年6月1日起施行。《反垄断司法解释》凝结了垄断民事纠纷案司法实践中积累的一些重要经验,将在未来垄断民事纠纷案中起到重要作用。本文将对《反垄断司法解释》所涉及的重要内容做简要的梳理和评述。

一、《反垄断司法解释》的起草背景

早在2008年8月1日《反垄断法》正式实施后,最高人民法院就已开始着手准备垄断民事纠纷案所能出现的各种问题。2008年10月24日,最高人民法院在天津召开研讨会,讨论人民法院在审理垄断民事纠纷案中急需解决的问题。
Continue Reading 反垄断司法解释评述