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By Susan Ning, Hazel Yin, Yangdi Zhao King & Wood Mallesons’ Commercial & Regulatory Group

Tuntitledhuntitlede 12th Five-Year-Plan period (2011-2015) has witnessed intense antitrust enforcement efforts by the Chinese antitrust regulators. Recently, the National Development and Reform Commission (“NDRC”), the price-related antitrust regulator in China released a summary report on its achievements during the past five years. In particular, a total of 97 price-related antitrust cases were concluded, and the fines imposed and illegal gains confiscated amount to approximately RMB 10.4 billion yuan. Among the 97 cases, 29 were handled by NDRC directly and 68 by its local counterparts. 76 cases related to monopoly agreements, 13 concern abuses of market dominance, and 8 involve administrative monopolies.
Continue Reading A Snapshot of Developments in NDRC’s Antitrust Enforcement and Legislation from 2011-2015

By Susan Ning, Kate Peng and Ying Zhu King & Wood Mallesons’ Commercial & Regulatory Group

Ountitledn peng_kateDecember 8th 2015, the State Administration for Industry and Commerce (SAIC) publicized on its website Guangdong Administration for Industry and Commerce (AIC)’s decision in relation to the boycott investigation into Guangzhou Panyu Animation Association (GAGA). This is the very first investigation that focuses on a boycott agreement. In previous investigations where boycotts were identified, there were always other anti-competitive agreements involved and boycott agreements were not identified as the target violations that were subject to fines.

Here we introduce the GAGA investigation and some previous boycott-related investigations. We then present a short guide to practices that may constitute boycott agreements identified by the authorities.
Continue Reading First Boycott Decision: Be Careful with Concerted Exclusive Dealing

By Susan Ning, Kate Peng and Lingbo Wei King & Wood Mallesons’ Antitrust Group

NING, Susan (Xuanfeng)彭荷月After more than a year’s investigation into Qualcomm, the NDRC made an announcement of its investigation decision through press release on 10 February 2015.[1] About 20 days later, the NDRC published the full-text of the decision on its official website on 2 March 2015. The decision provided a comprehensive analysis on the definition of the relevant markets, Qualcomm’s dominant position and abusive conducts that are deemed violating the Chinese Anti-Monopoly Law (“AML”), which sent a warning to patent-heavy companies to review their business practices in China.

We hereby set out the points below to provide insight into the facts and factors that the NDRC considered in its decision making process.
Continue Reading NDRC’s Qualcomm Decision：A Warning to Patent-heavy Companies

By Susan Ning, Kate Peng and Lingbo Wei  King & Wood Mallesons’ Antitrust Group

NING, Susan (Xuanfeng)彭荷月On 10 February 2015, the NDRC announced its decision in relation to the abuse of dominance investigation into Qualcomm. Following the announcement, the NDRC held a press conference and revealed more details about the case.

According to Mr. Xu Kunlin, the Director General of the Anti-monopoly Bureau of the NDRC, two US companies filed a complaint to the NDRC about Qualcomm’s alleged abuse of dominance in 2009. In November 2013, the NDRC initiated an investigation into Qualcomm and conducted a dawn raid at Qualcomm’s Beijing and Shanghai offices in the same month. It is reported that during the proceedings, Qualcomm delegates had made 28 visits to the NDRC. Mr. Xu personally attended 8 of those visits. Finally, yesterday the NDRC announced its decision, imposing a fine of RMB 6.088 billion (approximately USD 975 million).  The fine is the largest in China’s corporate history, outnumbering all fines imposed by the NDRC in 2014 (RMB 1.8 billion in total) by more than double.  In addition to the fine, Qualcomm has made commitments to the NDRC to take several rectification measures.

According to press releases, Mr. Xu indicated that the full text of the decision will be published in the coming days.Continue Reading Qualcomm Investigation Finally Closed: Some Changes in Business Model in Addition to an RMB 6.088 Billion Fine

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

On 4 November 2014, the State Administrative for Industry and Commerce (“SAIC”) published a decision in which it found that the Pizhou branch of the Xuzhou City Tobacco Corporation (the “Pizhou Tobacco Branch”) had abused its dominant position in the tobacco wholesale distribution market by treating customers of equal standing in a discriminatory manner.  The SAIC found that the Pizhou Tobacco Branch had violated Article 17 of the PRC Anti-Monopoly Law (the “AML”), which prohibits business operators in a dominant market position from engaging in abusive conduct that eliminates or restricts competition, and it imposed a fine of RMB 1.7 million.

We set out in this article some points that are of particular relevance to undertakings subject to the jurisdiction of the AML in evaluating the legal risks of conduct which may constitute an abuse of a dominant market position.
Continue Reading SAIC’s First Decision on Discriminatory Treatment

By Susan Ning, Kate Peng, Sarah Eder and Gao Sibo

 Introduction 

A major concern for undertakings which are involved in international cartel cases is the possibility of receiving overlapping punishments for their cartel conduct by competition authorities in different jurisdictions.

Various jurisdictions, including China, recognize the concept of double jeopardy and have introduced provisions which attempt to prevent over-punishment in the context of national proceedings.  Although there is no international standard to prevent double jeopardy in the context of antitrust enforcement of the same cartel by different jurisdictions, a number of competition authorities have taken the principle into account when imposing fines in international cartel cases, for example by excluding commerce or turnover attributable to certain sales or applying a reduction to the fine to take account of the fact that another jurisdiction has already imposed fines in respect of certain sales.     

We recognize that double jeopardy is an important consideration for clients which are implicated in international cartels. The Chinese antitrust agencies have not yet expressed how they intend to address the issue.  However, as they become more experienced in dealing with such cases, we hope that they will also become more aware of the issue and will clarify their approach to the issue of double jeopardy. 
Continue Reading The Principle of “Double Jeopardy” in International Cartel Investigations

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, 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?