Supreme People's Court

By King & Wood Mallesons’ Healthcare Group

In April 2013, the Supreme People’s Court (“SPC”) issued the“Supreme People’s Court’s Annual Report of Intellectual Property Cases”, in which the SPC included 34 typical intellectual property and competition cases from 2012 and summed up 37 issues of application of law with universal significance. In this regard, we made a summary of the patent cases related to the pharmaceutical industry in the report, for the purpose of assisting pharmaceutical enterprises in drafting patent applications.
Continue Reading Insights on Drafting Pharmaceutical Patents from the “Supreme People’s Court’s Annual Report of Intellectual Property Cases”

By Harry Liu and Qiu yue  King and Wood Mallesons’ Dispute Resolution Group  Shanghai Office

As an alternative dispute resolution mechanism, arbitration has been increasingly widely chosen as the dispute resolution method by parties to the commercial contracts. A signatory to the arbitration clause may bring litigation jointly against the other party to the arbitration clause and non-signatories to such arbitration clause. It remains uncertain in judicial practice whether courts have jurisdiction over such joint tort disputes despite of the arbitration clause. The Supreme People’s Court’s view towards the issue also has shifted back and forth. The retrial ruling lately handed down by the Supreme People’s Court after confirmed by its judicial committee gave a clearer answer to the question, which will definitely have a demonstration effect on the judicial practice in the future.
Continue Reading Retrial Ruling of the Supreme People’s Court Settles the Disputes on the Jurisdiction over Joint Tort Cases: Litigation or Arbitration

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 China’s Anti-Monopoly Law: Retrospect and Prospect on the Fourth Anniversary

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 中国反垄断法实施四周年回顾与展望

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

By Susan Ning, Shan Lining, Ji Kailun and Liu Jia

 

On 25 April 2011, the Supreme People’s Court (the Court) published draft rules which govern Anti-Monopoly Law private actions (Draft Rules).  These draft rules are entitled "Provisions on Issues Concerning the Application of Law in relation to Trials of Monopoly Civil Dispute Cases".

 

This article outlines the salent provisions of, and points to some interesting features of, these Draft Rules.

Continue Reading A Further Look At The Draft Rules Governing AML Private Actions

By Susan Ning, Yin Ranran

On 25 April 2011, the Supreme People’s Court issued for public comments draft rules which govern civil action in relation to Anti-Monopoly Law (AML) disputes.  These rules are entitled "Provisions on Issues Concerning the Application of Law in the Trial of Monopoly Civil Dispute Cases"("Draft Rules").  Prior to the release of these Draft Rules, there haven’t been any detailed rules in relation to AML civil action.  The court will consult on this Draft Rules till 1 June 2011.

The Draft Rules contain 20 articles covering jurisdiction, standing of plaintiffs, burden of proof, evidentiary rules, relationship of antitrust administrative investigations and the judicial process, form of civil liabilities and the statute of limitations.  The objective of these Draft Rules is to ensure proper adjudication of civil monopoly disputes cases, prevent monopolistic conduct, protect fair competition in the market and safeguard the interests of consumers and public interest.

Continue Reading Supreme People’s Court Issues Draft Rules Governing Private Actions under the Anti-Monopoly Law

By Xu Jing, Partner at King & Wood’s Intellectual Property Group

Malicious litigation is broadly thought to be using a legal right to litigate to protect an interest when no substantive right has been violated. Currently, Chinese law does not provide any specific provisions on how to determine whether a party has abused its right to litigate, nor does the law define the concept of malicious litigation. Moreover, Chinese law does not provide specific remedies for a victim of malicious litigation to repair the damages suffered from a malicious litigation.

Continue Reading Counter-Suit for Damages Actions in Malicious Litigation

In conclusion, after the transition from a fixed rate to floating rate for damages, conflicts may still arise during litigation or arbitration.
如上所述,中国人民银行将罚息利率由固定利率变为浮动利率后,在诉讼或仲裁主张逾期付款违约金时仍会存在标准上的争议.

Continue Reading Calculating Late Payment Breach Damages