Resale Price Maintenance

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By Susan Ning, Liu Jia, Xiao Dasha and Hazel Yin

On 1 August 2013, the very same day of the fifth anniversary of China’s Anti-Monopoly Law (“AML”), Shanghai Higher People’s Court (“Shanghai Higher Court”) made a final judgment on the Rainbow v. Johnson & Johnson case.  It is the first case of vertical monopolistic agreement and the court overruled the judgment of the first instance, and ruling for the appellant (i.e., the plaintiff). This case is also the first anti-monopoly case in China where the second-instance court reversed the judgment of the first instance court and ruled in favor of the plaintiff.
Continue Reading Chinese Court Rendered Final Judgment on Rainbow v. Johnson & Johnson – the First Antitrust Private Action of Vertical Monopolistic Agreement

作者：宁宣凤、刘佳、尹冉冉

2013年8月1日，也即在《反垄断法》实施五周年的纪念日当天，上海市高级人民法院对全国第一起纵向垄断协议案件（锐邦诉强生案），作出终审判决——判决上诉人（也即原告）胜诉。本案也是迄今为止第一起二审法院撤销一审判决并判决原告胜诉的反垄断民事案件。
Continue Reading 第一起纵向垄断协议民事诉讼案件：锐邦诉强生固定转售价格案简析

By Susan Ning, Kate Peng, Huang Jing and Li Rui

In May 2013, the National Development and Reform Commission (“NDRC“) initiated the investigation against several infant formula companies for the alleged violation of Article 14 of the Antimonopoly Law (“AML“).

This is the second investigation by NDRC against resale price maintenance (“RPM“).  Early this year, NDRC fined China’s famous producers of premium liquor, Kweichow Moutai Co Ltd. (Maotai) and Wuliangye Group Co., Ltd. (Wuliangye) in the amount of RMB 247 million (about USD 39.8 million) for RPM behaviors (Maotai/Wuliangye Case)i .  The current investigation is still ongoing and no penalty against any companies has been made. 
Continue Reading The Second RPM Investigation by NDRC within this Year

By Susan Ning, Liu Jia and Hazel Yin

On 22 February, 2013, Guizhou Provincial Pricing Administration (“Guizhou Pricing Administration”) released the decision to impose a penalty of RMB 247 million (about USD 39.8 million) on Kweichow Moutai, the most famous Chinese state-owned producer of premium liquor, for administering resale price maintenance (“RPM”).  On the same day, Sichuan Provincial Development and Reform Commission (“Sichuan PDRC”) released its decision to penalize Wuliangye, another state-owned premium liquor producer, in an amount of RMB 202 million (about USD 32.6 million) for RPM as well.  Both agencies are local counterparts of the National Development and Reform Commission (“NDRC”), which is charged with the responsibility to enforce against price-related monopoly agreements, including RPM under the Anti-Monopoly Law (“AML”).

The news has made a huge stir, because this is the first time the Chinese AML enforcement agencies penalized RPM under the AML.  Besides, the two fines add up to RMB 449 million (about USD 72.4 million) in total, the largest penalty in China’s AML enforcement history so far.
Continue Reading Chinese Antitrust Authorities Imposed Large Fines on Kweichow Moutai and Wuliangye for Resale Price Maintenance

By Susan Ning, Liu Jia and Kate Peng

China’s famous producers of premium liquor, Kweichow Moutai Co Ltd. (Maotai) and Wuliangye Group Co., Ltd. (Wuliangye) recently announced that they would correct their behaviors suspicious of AML violation.  The corrections were said to be made after the companies being “inspected” by the National Development and Reform Commission (“NDRC”) and the relevant provincial pricing administration. It has been the hottest topic on China’s Anti-monopoly Law (the “AML”) after the resounding LCD panel case closed by NDRC in early this month.

Maotai and Wuliangye are both famous Chinese premium liquor brands and the price of their products is relatively high in tradition.  In early January, the companies issued notices respectively announcing punishments on the distributors who sold their products at a price below the lowest resale price set by the companies.  Maotai also punished the distributors who made cross-regional sales. It is reported that the chairman of Maotai even stated in a recent countrywide distributor meeting that the retail price of Feitian Maotai can not be less than 1,519 yuan and the price of group-purchase can not be less than 1,400 yuan, and that Moutai would sternly punish those who breach the price “fortress”. 
Continue Reading NDRC Say No to Resale Price Maintenance – Company should be Cautious on Pricing Strategy

By Liu Cheng  Martyn Huckerby and Yu Chenchen  King & Wood Mallesons’ M&A Group

Whether a resale price maintenance (“RPM”) provision is deemed to infringe the Anti-Monopoly Law (“AML”)[1] regardless of whether it has an impact on competition has been one of the most cloudy issues under the AML since the law came into effect in 2008. A recent decision by the Shanghai No.1 Intermediate People’s Court (“Shanghai Court”) has found that for RPM to infringe the AML it must have an adverse impact on competition. While it is still too early to say if this court decision will be followed by other Chinese courts, the decision provides valuable guidance for companies when considering how the AML will apply to their distribution agreements in China.Continue Reading Resale Price Maintenance – Not Per Se Illegal Under the AML

作者：刘成  贺墨亭 俞珍珍   金杜律师事务所并购组

自从《中华人民共和国反垄断法》[1]（“《反垄断法》”）实施以来，关于“无论限定转售价格条款对竞争有无影响，均被视为违反《反垄断法》”这一问题，始终是《反垄断法》中几个最不明确的问题之一。但是近日，上海市第一中级人民法院（“上海一中院”）作出的一项判决表示，要认定限定转售价格条款违反《反垄断法》，必须证明该条款对竞争产生了不利影响。尽管目前还很难说上海一中院的这一判决能否得到中国其他法院的认可和遵循，但总的来说，这一判决对于各个公司考察《反垄断法》如何适用于其在中国的经销协议，将发挥重要的指导作用。

 案件事实和法院判决

本案的争议双方是强生（上海）医疗器材有限公司和强生（中国）医疗器材有限公司（合称“强生”）与它们的一位经销商—北京锐邦涌和科贸有限公司（“锐邦”），争议在于强生经销合同中限定最低转售价格的条款。
Continue Reading 限定转售价格–《反垄断法》下并非本身违法的情形

By Susan Ning,Liu Jia and Hazel Yin

On 3 May 2012,China’s Supreme People’s Court issued the Rules of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Caused by Monopolistic Conduct ("Rules").The Rules contain 16 articles covering standing of plaintiffs,jurisdiction,burden of proof,evidentiary rules,expert witness,the judicial process, form of civil liabilities and the statute of limitations.The Rules entered into force on 1 June 2012.

Compared to the draft Rules released last year for public comments ("Draft Rules")1,the Rules contain fewer articles and remain silent on a few issues that were previously addressed in the Draft Rules.This article discusses the major provisions in the Rules.Continue Reading Supreme Court of China Issues Judicial Interpretation Governing Private Antitrust Litigations