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By  Zhang Shouzhi  Hu Ke  and Xu Beibei  King&WoodMallesons’ Dispute Resolution Group

Being the world’s largest developing country and largest emitter of greenhouse gases, China started in 2009 an ambitious campaign, largely on its own initiative, to reduce its carbon intensity (measured by emission per unit of GDP) by 40-45% in 2020 from 2005 levels. The 12th National Five-year Plan set two mandatory goals of reducing energy intensity by 16% and reducing carbon intensity by 17% in the term of 2011-2015. The Chinese government is taking measures to further adjust the industrial structure, to optimize energy structure, to improve energy efficiency, and to control energy consumption and greenhouse gas emission.

On 29 October 2011, the National Development and Reform Commission (the “NDRC”) issued the Notice of the General Office of the National Development and Reform Commission on the Pilot Trading of Carbon Emission Rights, according to which that Beijing, Tianjin, Shanghai, Chongqing, Hubei, Guangdong and Shenzhen would start pilot carbon emissions trading. From 2013 to 2014, the pilot provinces and cities (the “Pilot Regions”) have respectively developed carbon emissions trading schemes, set out management and trading rules, and launched the carbon emission trading systems; moreover, in July 2014 Beijing, Tianjin, Shanghai, Guangdong and Shenzhen completed the first compliance audit after regulated emitters surrendered their allowances.
Continue Reading China’s Pilot Carbon Markets at a Glance

By He Wei and Wang Yaxi  King & Wood Mallesons’ IP Litigation Group

Introduction

As China’s cross-border technology trade develops, the number of disputes arising from international Intellectual Property contracts gradually increases. Many parties involved in international business prefer arbitration as their dispute resolution mechanism, because arbitration is confidential and its decisions can be enforced in different jurisdictions. Loads of international technology license agreements contain arbitration provisions whereby the parties agree on how to settle IP related disputes. IP disputes that will be arbitrated usually include: whether the licensee’s use exceeds the licensed scope; issues concerning the licensee’s disclosure of the licensor’s technology; and the licensee’s unauthorized sub-license of the licensor’s technology. The value of an IP right, as an intangible property right, lies in a right owner’s exclusive right to use the technology or business resources which constitute the subject matter of the right. Therefore it is essential for a right owner to maintain his IP right by prohibiting unauthorized use by others. Accordingly the use of injunctions plays a vital role in IP cases. China’s IP legislation now provides pre-action and interlocutory injunctions to give right owners provisional remedies, in the form of injunctions before and during the trial. In this way an owner can stop damage from occurring or escalating.
Continue Reading Applications for Injunctive Orders in IP Arbitration

By Meg Utterback   Monique Carroll and Emily Rich   King & Wood Mallesons’ Dispute Resolution Group

Bribery and corruption is increasingly an issue of concern for multinational companies, especially when seeking to invest in “high risk” jurisdictions. Historically, the primary concern in this area has been exposure to civil and criminal penalties for contravention of anti-bribery and corruption legislation. However, recent years have seen a growing trend towards governmental expropriation of investments alleged to have been obtained by bribery and corruption. This poses a significant additional risk to foreign investors. Investors who are found to have engaged in corrupt practices will have difficulty defending against expropriation or seeking compensation for expropriation that might otherwise have been obtainable under either domestic or public international law. Unfortunately, in some cases, foreign officials may take retaliatory action against an investor for failing to pay a bribe. Organisations doing business abroad must remain vigilant about anti-bribery and corruption compliance. They must also consider what protections may be available under investment treaties for unfair or arbitrary state conduct that equates to an expropriation or another breach of applicable international standards.
Continue Reading Bribery and Corruption in Foreign Investments: Investors Beware

“Made in Africa”, a publication that looks at the latest legal developments, market analysis and hot topics, with our partners in Africa, that are focusing the minds of investors into, and businesses operating in, Africa.

As the focus on Africa intensifies we are seeing new players enter the market and strategic players increase…

By Richard W. Wigley  King & Wood Mallesons’ IP Litigation Group

wigley_richardThe framework for variants of class action-type litigation in the People’s Republic of China has been in place since the initial promulgation of the Civil Procedure Law of the P.R.C. (“CPL”) in 1991. The amended CPL provides requirements for filing a “joint litigation” for suits where “the object of the action is of the same category and a party consists of numerous persons” and where the parties may choose to elect a representative.[1] Further as to whether standing is afforded the plaintiff and the filing requirements for such litigation, the CPL provides that “[t]he plaintiff must be a citizen, legal person, or an organization having a direct interest with the case … there must be a specific defendant … [and] there must be a specific claim and a specific factual basis and grounds ….”[2] In short, the CPL provides a framework which allows for what is a variation of what is commonly referred to as a “class action lawsuit”.
Continue Reading Class Action-type Litigation in China

By Jin Xiong, Yinli Zhang   King & Wood Mallesons’  M&A Group

On 19 July 2014, state-owned enterprise Tsinghua Unigroup Ltd. (“Tsinghua Unigroup“) and RDA Microelectronics, Inc. (“RDA”) jointly announced the completion of the US$907 million merger and acquisition of RDA (“Merger”). The announcement noted that the Merger was completed according to the Agreement and Plan of Merger previously announced on 11 November 2013 and amended on 20 December 2013 (“Merger Agreement”). The Merger Agreement contemplated that the Merger was to be executed through Tsinghua Unigroup’s overseas subsidiary company, and when the Merger is completed, RDA would launch into its delisting procedures.
Continue Reading Tsinghua Unigroup and RDA deal closed, but controversy far from over

By Zhang Shouzhi Hu Ke Tian Jing king&WoodMallesons’ Dispute Resolution Group

Abstract

In the case of Anhui Longlide Packing and Printing Co., Ltd. v.s. BP Agnati S.R.L., which related to a dispute regarding the validity of an arbitration agreement, the Supreme People’s Court confirmed that the selection of the ICC International Court of Arbitration (“ICCICA”) with the “place of jurisdiction” at Shanghai is valid. This is a milestone for Mainland China opening its arbitration market to offshore arbitration institutions.
Continue Reading Onshore Arbitration by Offshore Institutions Recognized by China’s Highest Court

By King&WoodMallesons’  Trademark Group

After years of expectation, China has begun to accept multi-class trademark applications since the newly-revised Trademark Law became effective on May 1, 2014.. Does this practice meet the anticipation of the trademark applicants?

As a common practice in many countries, multi-class trademark applications streamline the registration process in a cost effective manner. Not only the cost for filing is reduced for extra class(es) in one application, but that for future renewal, assignment, and recordation of name/address change, etc. can also be significantly reduced. Multi-class registration also brings high efficiency to administration of the trademark portfolios for brand owners.
Continue Reading Pros and Cons of Multi-Class Trademark Application in the PRC

By George Zhao and Dai Mu   King & Wood Mallesons’ M&A Group

In China, the new energy automobiles (NEAs) are currently defined as vehicles utilizing advanced technical know-how, new technologies and new structures, which use unconventional vehicle fuel as the power source (or conventional vehicle fuel but new in-vehicle power devices). The NEAs are defined as vehicles that integrate advanced technologies in power control, including hybrid electric vehicles, battery electric vehicles (BEV, including solar energy vehicles), fuel cell electric vehicles (FCEV), hydrogen engine vehicles, other new energy vehicles (e.g., efficient energy storage device and methyl ether), and products enumerated in China’s industrial policies[1].
Continue Reading Recent Development in China’s New Energy Auto Industry and M&A of Foreign Investors

By king&WoodMallesons’ Compliance Group

The “People’s Republic of China Food Safety Law (Revised Amendment)” (“Revised Amendment“) was submitted for public comment via National People’s Congress’ official website in June 2014. The first Amendment is the “People’s Republic of China Food Safety Law (“Amendment“), which was submitted to the State Council for comments in late 2013. The State Council received numerous comments and proposals and thus made further modifications to the Amendment. Compared with the Amendment, the content of the Revised Amendment is much more comprehensive, it further increases fines for food safety violations, regulates health food advertising and record management, clarifies food safety training requirements, and specifically addresses infant formula production safety, all of which reflect the growing attention paid by the state to food safety issues. This newsletter will discuss the differences between the Amendment and the Revised Amendment and the underlying rationale behind the differences:
Continue Reading Revised Amendment to the PRC Food Safety Law