By Louise England, King & Wood Mallesons

Background

The decision of the Supreme Court of Victoria in Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 [1] was as fast as the subject matter at stake, the Second Applicant’s right to particulate in the 2015 Formula One Season and specifically, the Melbourne Grand Prix on Sunday, 15 March 2015.

The decisive judgments of the Court at first instance (Croft J) and the Court of Appeal (Whelan, Beach and Ferguson JJA) delivered in just eight days, act as a positive indication of the Supreme Court of Victoria’s efforts to be perceived as a facilitative, arbitration friendly jurisdiction that is willing to commit
its resources to encourage the effective resolution of disputes between parties.
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By Susan Ning, Peng Heyue, Yang Yang, Qiu Weiqing, Sarah Eder, and Guo Shaoyi

Introduction

On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, marking the beginning of the first anti-monopoly case in the internet arena. Qihoo lost the first trial and appealed. On 16 October 2014, the Supreme Court handed down its final decision, rejecting Qihoo’s appeal and upholding the first-instance court judgment. This was the first anti-monopoly case heard by the Supreme Court. The Supreme Court’s judgment elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance, which offers guidance and rules for future anti-monopoly litigation, especially those concerning abuse of dominance.
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By Liu Cheng Swita Gan Yu Zhenzhen King&Wood Mallesons’ M&A Group

S001ince the Anti-monopoly Law of the People’s Republic of China[1] (“AML”) came into effect, there has been much debate about the circumstances in which minimum resale price maintenance (“RPM”) will constitute a vertical monopolistic agreement prohibited by Article 14 of the AML. In the debate, the most contentious issue is whether RPM should be regarded as per se illegal or if the “rule of reason” doctrine[2] should be adopted to assess on a case-by-case basis, whether the RPM is illegal.

In reviewing the AML, it can be seen that RPM is one kind of vertical monopolistic agreement, as categorized by Article 14 of the AML. Article 13 of the AML defines monopolistic agreements as “agreements, decisions or other concerted practices that eliminate or restrict competition”. This definition apparently covers vertical monopolistic agreements listed in Article 14. However, opinions differ when it comes to assessing the illegality of RPM. The different opinions can be simplified into two distinct lines of thought: (i) whether the act of RPM is a monopolistic agreement that eliminates or restricts competition definitely with no need to further decide its effect on competition (i.e. to adopt the per se illegal rule) or (ii) whether the act of RPM itself should not be deemed as illegal and a rule of reason approach should be adopted to comprehensively evaluate its effect on market competition, to determine whether or not it constitutes an illegal monopolistic agreement.
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