By King & Wood Mallesons

Introduction

Arbitration clauses contained in commercial contracts typically derogate the jurisdiction of the otherwise competent state courts by providing that the parties to the contract will arbitrate all disputes which arise under or in connection with the contract. Similarly, jurisdiction clauses typically limit all disputes which arise under or in

By Sharon Henrick, King & Wood Mallesons’ Sydney Office

henrick_sAustralia’s competition policy framework and laws are currently undergoing a wide-ranging review – the first comprehensive independent review of Australia’s competition framework since 2003. We explain the key developments and recommendations to date.

Background

In its 2013 election campaign, the Coalition of Australia’s Liberal and National political parties proposed a ‘root and branch’ review of competition laws in Australia within its first 100 days of government.
Continue Reading

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

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

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

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

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

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

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

By Susan Ning, Liu Jia and Angie Ng

The National Development and Reform Commission (NDRC) has co-organised a conference focusing on price related monopoly agreements with the European Commission Directorate-General for Competition (DG Competition).  The conference took place from 1 to 2 June 2011.

Antitrust authorities from the following jurisdictions attended this conference: the European Union, the United States of America, Germany, Spain, Ireland, Australia, Greece.  From China, officials from several government agencies attended the conference, including officials from: the Law Committee of the National People’s Congress, the Supreme People’s Court, Legislative Affairs of the State Council, the NDRC, the Ministry of Industry and Information Technology, the Ministry of Commerce, the State of Administration of Industry and Commerce, and pricing authorities based in Beijing, Tianjin and Shanghai.  Other attendees include representatives from China Consumers’ Association, China Cleaning Industry Association and academics.


Continue Reading