By Denning Jin King and Wood Mallesons’ IP Litigation Group

Introduction

Fair and equitable treatment (FET) originated from the Havana Charter of 1948 and the adoption of the FET standard accelerated in the late 1960s and in the 1970s when it was widely incorporated in bilateral investment treaties. By the end of 2009, 2,750 bilateral investment treaties (BITs) have been concluded,[i] and the vast majority have incorporated FET together with other standards such as full protection and security, using very similar language, as a safeguard against violations by the host state.[ii] However, it was not until the early twenty-first century that FET was applied in investor-state arbitral jurisprudence,[iii] where claimants lodged claims and tribunals found host state liability based on FET.
Continue Reading Fair and Equitable Treatment – Should the Standard be Differentiated According to Level of Development, Government Capacity and Resources of Host Countries?

By Susan Ning, Hazel Yin and Yunlong Zhang

The year 2012 marks the fifth year of the enactment and implementation of China’s Anti-Monopoly Law (“AML”).  Over the past year, we have witnessed substantial progress of the merger control regime and antitrust administrative investigations, in particular in the area of cartel investigations.  With the promulgation of judicial interpretation of the Supreme People’s Court, antitrust civil litigations are also picking up.  As the Year of Dragon is coming to an end, we present this article with an overview of how the AML has been implemented in the past year, together with our observations.  

I. Merger Control

The Ministry of Commerce (“MOFCOM”), the authority in charge of merger control review, maintained a similar caseload in 2012 compared to 2011 and has been gradually establishing its international reputation as one of the most important antitrust authorities.  
Continue Reading The Anti-Monopoly Law of China: What We Have Seen in 2012?

By Susan Ning and Hazel Yin

On November 16, 2012, the Ministry of Commerce (“MOFCOM“) released the latest data of unconditionally approved notifications of concentrations, including the total number and the list of all transactions with the name of each transaction and the undertakings concerned. According to an earlier piece of press release, MOFCOM will disclose information of unconditionally cleared cases on a quarterly basis1.

From August 1, 2008 when the Anti-monopoly Law (“AML”) became effective to September 30, 2012, MOFCOM cleared 474 cases, of which 458 cases were cleared unconditionally2.
Continue Reading China’s Ministry of Commerce Released List of Unconditionally Approved Notifications of Concentrations

作者:张保生 金杜律师事务所争议解决

(一)与诉讼相比,通过仲裁方式解决纠纷的特点

仲裁是一种通过非诉讼的手段解决民商事纠纷的方式。由于世界通行的现代仲裁制度是为适应市场经济和国际经贸往来迅速发展的需要,弥补诉讼制度之不足而建立、发展起来的,因而它具有一定的特点和优势。主要体现在以下几个方面:

1灵活性

在仲裁中,当事人可以根据自身的情况来选择仲裁机构、仲裁员、仲裁地点和适用的实体法,甚至选择仲裁的时间。特别是可以考虑仲裁员的经验、阅历、职称、学历、品行素养、仲裁水平等诸多方面在仲裁名册中自由选择自己信任的仲裁员。
Continue Reading 诉讼还是仲裁?– 跨国公司争议解决方式的选择

By Susan Ning, Sun Yiming and Kate Peng

On the International Symposium on Controversial Issues regarding Chinese AML Enforcement held in Hangzhou on Monday this week, both the National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”) announced that they will increase the transparency of their enforcement actions under the AML. 

NDRC and SAIC are the regulators for anti-monopoly conducts in China. The powers are divided between the two authorities in the way that NDRC is responsible for price-related monopoly conducts, and SAIC is responsible for non-price related monopoly conducts.

Continue Reading Chinese Antitrust Regulators Vow to Increase Transparency