By Simon Holmes (EU) , Emma Radcliffe (EU), Sharon Henrick (AU), James Darch (AU), Neil Carabine (HK), James Wilkinson (HK) and Kate Peng (PRC). King & Wood Mallesons
The volume and depth of cross-border cooperation between competition authorities is increasing, according to American Bar Association research. Greater collaboration between regulators has occurred as issues have
By Susan Ning, Kate Peng and Gong Ting King & Wood Mallesons’ Commercial & Regulatory Group
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14 June 2016, China’s State Council published on its website the Opinions on Establishment of the Fair Competition Review Mechanism in the Development of Market System (“Opinions”).[1]The introduction of the fair-competition review mechanism represents a landmark progress in developing market economy in China.[2]According to the Opinions, Chinese government departments at different levels shall conduct a fair-competition review during the formulation of policies and regulations starting from July 2016.
1. Background
Over the past decades, China has made extraordinary economic progress in a relatively short period of time. Notwithstanding this development, China’s transition to a modern market system is still on-going and the legacy of a centrally planned and highly administered and regulated system still remains in some areas of the economy. Such as certain current administrative and economic management system gives central and local government bodies extensive powers to intervene and participate in markets relevant to the industries and geographical areas in their jurisdictions.
Continue Reading Fair Competition Review – key step in competition policy
By Rahul Saha and Cameron Firth. King & Wood Mallesons
OMESA: An overviewThe Common Market of Eastern and Southern Africa (COMESA) is a supra-national organisation with 19 Member States – Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Madagascar, Malawi, Mauritius, Namibia, Rwanda, Seychelles, Sudan, Swaziland,
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
2012年6月22日，香港首部跨部门的实体竞争法在香港特别行政区政府宪报中公布，随之设立了新的监管机构，该机构的设立将会推动亚洲商业经营行为的变革，而该机构本身也拥有广泛的强制执行权力，其中包括有权在相关修订生效后开展黎明突袭，并对违反竞争行为处以严重处罚。
《竞争条例》将禁止卡特尔行为、滥用市场权势和其他形式的违反竞争行为，但一些豁免情况除外（包括考虑经济效率所规定的豁除、集体豁免和最低营业额）。合并审查将继续限制适用于电信部门。
香港竞争事务委员会（竞委会）将享有一系列的调查和强制执行权力，包括有权发出违章通知书、接受承诺、对举报人给予豁免、及启动诉讼处罚程序、和发出禁止担任高管职务的命令。
在本篇法律快讯中，我们将介绍《竞争条例》主要条款的潜在影响，提示企业应在该新法律规制下采取哪些准备措施，并简要列举新成立的竞委会将拥有哪些调查和强制执行权力。
Continue Reading 香港的新竞争法:反托拉斯革命的大幕即将拉开
By Martyn Huckerby Jill Wong King & Wood Mallesons’ Foreign Direct Investment Group
On June 22, 2012, Hong Kong’s first cross-sector substantive competition law regime was published in the official gazette, bringing with it a new regulator ready to change business practices in the Asian region, and armed with extensive enforcement powers, including the ability to conduct dawn raids and levy significant fines for anti-competitive conduct once the changes come into force.
The Competition Ordinance will prohibit cartel conduct, abuses of market power and other forms of anti-competitive conduct, subject to the availability of a number of exemptions, including exemptions based on efficiencies, Block Exemptions and minimum turnover. Merger control will continue to be limited to the telecommunications sector.
Continue Reading Hong Kong’s new competition law: get ready for the antitrust revolution
By Susan Ning, Zheng Ziqing and Angie Ng
On 3 June 2011, the Ministry of Commerce (MOFCOM) published, for public comments, draft rules which explain how MOFCOM will evaluate concentrations pursuant to the merger control regime. These rules are entitled "Provisional Rules on the Assessment of the Effects of Concentrations on Competition" (Draft Rules). The public has been invited to submit comments on these Draft Rules by 13 June 2011.
In fact, Article 27 of the Anti-Monopoly Law (AML) outlines a list of factors that MOFCOM would take into account, when assessing concentrations. These are: (a) the market shares of the business operators involved in the concentration and their control over the market; (b) the degree of market concentration; (c) the impact of the concentration of business operators on market entry and technological advancement; (d) the impact of the concentration on consumers and other relevant business operators; (e) the impact of the concentration of business operators on the development of the national economy; and (f) any other factors deemed by MOFCOM to be relevant for consideration. The Draft Rules expand on these factors. There are altogether 14 provisions in the Draft Rules. The following table provides an illustration of how the Draft Rules "expand" on the factors set out in Article 27 of the AML.
Continue Reading Draft Merger Control Rules Published For Comments
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 NDRC and EU’s DG Competition organize conference on price-related monopoly agreements
By Susan Ning, Liu Jia and Angie Ng
In March every year, lawmakers and political advisers from the National People’s Congress (NPC) (Chinas equivalent of Parliament) and the Chinese People’s Political Consultative Committee (CPPCC) (China’s top advisory body) conduct sessions in Beijing to take stock of social, legal and economic issues in China for the preceding year; and discuss objectives (in relation to the same issues) for the year going forward1. These sessions are often referred to as the "two sessions".
Two statements which have arisen during these two sessions; are of particular interest (from an antitrust law perspective):
Continue Reading The annual “two sessions” and antitrust law noises
