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Over the last three decades, government antitrust enforcers and private plaintiffs in the United States have increasingly sought to apply U.S. antitrust laws to conduct by foreign businesses that is deemed to have effects on the U.S. economy. Many of these foreign businesses have been located in Asia:  since the 1990s there have been waves of U.S. criminal prosecutions and civil cases alleging anticompetitive conspiracies between Japanese, Korean, and Taiwanese sellers and manufacturers.  For most of this time, however, companies in mainland China—despite being the largest exporters of goods to the United States, first in Asia and now in the entire world—have rarely been targeted for U.S. antitrust enforcement.
Continue Reading Between a Rock and a Hard Place: Vitamin C and the Future of U.S. Antitrust Enforcement Against Chinese Companies *

针对望远镜制造商宁波舜宇的反垄断诉讼驳回

On September 28, 2017, Judge Edward Davila dismissed an antitrust complaint filed by Optronic Technologies, Inc. (dba Orion) against Ningbo Sunny Electronic Co., Ltd., Sunny Optics, Inc. and Meade Instruments Corp.  The case is Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd., Case No. 5:16-cv-06370-EJD (N.D. Cal.). Defendants are represented by Leo Caseria and Mike Scarborough of Sheppard, Mullin, Richter & Hampton LLP.
Continue Reading Antitrust Claims Against Telescope Manufacturer Ningbo Sunny Dismissed and Shot into Space

On June 14, 2016, the State Council issued Opinions on Establishing the Fair Competition Review System in the Development of Market System (hereinafter “Opinions”), which finally uncovers the veil of this system. Fair competition review system was first mentioned in Opinions on Promoting Further Systemic and Institutional Reforms to Accelerate Implementation of Innovation-Driven Development Strategies, issued by the Central Committee of the Communist Party of China and the State Council on March 13, 2015, indicating “break the local protection, sort out and abolish the rules and practices impeding the formation of an unified national market, rectify the improper subsidies or the act to restrict or exclude competition by making use of the administrative power by local governments, and explore and implement the inspection system for a fair competition.”
Continue Reading Fair Competition Review System

On February 25, 2016, China’s Legislative Affairs of the State Council (“SCLAO”) released the Draft Amendment of PRC Anti-Unfair Competition Law (“Draft Amendment”) and started to solicit public comments on the Draft Amendment until March 25, 2016.  Click here for the unofficial translation of the Draft Amendment.  The current PRC Anti-Unfair Competition Law came into effect early on December 1, 1993 and with more than twenty years’ enforcement, the regulatory authority of unfair competition-State Administration for Industry & Commerce (“SAIC”)-decided to amend the law to fit into the ever changing market environment. 
Continue Reading PRC Anti-Unfair Competition Law (Draft Amendment 2016)

Since 2010, China’s State Administration for Industry and Commerce (SAIC) and the State Council Legislative Affairs Office (SCLAO) have been revising China’s Anti-Unfair Competition Law of 1993 (AUCL). This February the SCLAO released a draft revision of the AUCL for public comment. In general, the AUCL is broad, covering unfair trade practices that relate to intellectual property rights, anti-corruption and antitrust. Click here for the unofficial translation of the draft revision of the AUCL. Various organizations such as the American Chamber of Commerce, Beijing and American Bar Association will be submitting comments on behalf of companies and law firms, as well as other interested parties.
Continue Reading China’s Anti-Unfair Competition Law Is Poised For An Update

China’s adoption of the Anti-Monopoly Law (“AML”) is a landmark in the evolution of China’s economic transformation. The AML was a carefully thought-out, negotiated, strategic development dictated by the central government, and the culmination of a process that started almost twenty years ago. China has moved from a centrally planned command economy to one that is largely a free market economy, despite the existence of state-owned enterprises as major players. The AML is the ultimate recognition on the part of the Chinese government that free and fair competition in the market place is in the essential interest of the Chinese people.
Continue Reading Antitrust Enforcement in China: Understanding the Framework of the Anti-Monopoly Law

This past November and December, the US Department of Justice (“DOJ”) and European Commission (“EC”) cleared Microsoft Corporation’s (“Microsoft”) acquisition of the bulk of the devices and services business of Nokia Corporation of Finland (“Nokia”) without any conditions. In contrast, on April 8, 2014, the Chinese Ministry of Commerce (“MOFCOM”) approved the acquisition subject to conditions that include an intellectual property issue that is still to be resolved in the US, EU and other countries: whether holders of standard essential patents (“SEPs”) who make licensing commitments under fair, reasonable and nondiscriminatory (“FRAND”) terms should be barred from seeking injunctive relief against alleged infringers of their patents.  MOFCOM’s conditional approval is not controversial for this specific transaction, but raises the question of how MOFCOM’s treatment of this issue will be interpreted in future merger reviews and whether this will affect investigations related to anticompetitive conduct.
Continue Reading Microsoft-Nokia: China’s MOFCOM Quietly Slips Into the Debate about Injunctive Relief for FRAND-encumbered SEPs

The current press is buzzing with news about the recent increase in antitrust investigations involving foreign companies with operations in China, and reports of foreign companies being told to expect higher fines if they “put up a fight” during investigations. At the same time, the Chinese enforcement agencies have started to make their decisions public. Putting these developments in perspective, the take-away is that antitrust in China should be taken seriously, the enforcement agencies are still in the development stage, and some progress is being made in transparency of decision-making.
Continue Reading Antitrust Investigations in China: Putting Things in Perspective

On August 7, 2013, the National Development and Reform Commission (“NDRC”) fined six powdered milk companies – five foreign and one Hong Kong-based – RMB668 million (approximately US$109 million) for engaging in anti-competitive practices and illegal price-fixing, the largest fine ever for an Anti-Monopoly Law (“AML”) violation in China.
Continue Reading China Hands Milk Producers the Largest Anti-Monopoly Violation Fine

On March 29, 2013, the Guangdong High People’s Court ruled that Tencent, Inc. (“Tencent”) did not violate China’s Anti-Monopoly Law (“AML”). In the first lawsuit of its kind, Beijing Qihoo Technology Co. Ltd. (“Qihoo”) sued Tencent under the AML, claiming Tencent was engaging in anti-competitive behavior. They sought ¥150 million in damages and an injunction against Tencent.
Continue Reading Qihoo 360 v. Tencent: A Landmark Decision under China’s Anti-Monopoly Law

By Becky Koblitz 

Since the Anti-monopoly Law (“AML”) has come into effect in August 2008, MOFCOM has issued 16 conditional approvals requiring certain structural or behavioral remedies in order to prevent the anticompetitive consequences that, from MOFCOM’s perspective, could arise as a result of the transaction. On March 27, 2013, the Ministry of Commerce (“MOFCOM”) requested public comments by April 26, 2013 on draft provisions (for unofficial translation by SMRH, please see here) concerning the evaluation, negotiation, implementation, monitoring, reconsideration of the remedies used in the conditional approvals issued as a result of the pre-merger review process as well as related sanctions. Once the draft provisions are finalized, they will replace the 2010 interim provisions on the acquisition and divesture of assets.Continue Reading MOFCOM Requests Public Comments on Draft Provisions Related to Remedies Imposed in Conditional Approvals