Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and Li Xiang at AnJie Law Firm

Introduction

There is a joke in reference to the relationship between antitrust and intellectual property and the conflicts between them, which goes, “It is not easy to marry the innovation bride and the competition groom and some have argued that such a marriage will unavoidably lead to divorce.” Nowadays it is not a problem if there is an intrinsic conflict between them. In China, the principle that both of the two legal regimes serve the common purpose of promoting innovation and enhancing consumer welfare is broadly acknowledged.

Continue Reading Abuse of Dominance in Relation to Intellectual Property: From China’s Perspective

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and Li Xiang at AnJie Law Firm

Introduction

There is a joke in reference to the relationship between antitrust and intellectual property and the conflicts between them, which goes, “It is not easy to marry the innovation bride and the competition groom and some have argued that such a marriage will unavoidably lead to divorce.” Nowadays it is not a problem if there is an intrinsic conflict between them. In China, the principle that both of the two legal regimes serve the common purpose of promoting innovation and enhancing consumer welfare is broadly acknowledged.

Continue Reading Abuse of Dominance in Relation to Intellectual Property: From China’s Perspective

Authored by Arthur Dong (dongxiao@anjielaw.com) from AnJie Law Firm and Li Meng

Whether foreign arbitration institutions could conduct arbitration in the People’s Republic of China (“PRC”) is a question that many industry insiders are curious about. Back in 2006, when the Wuxi Intermediate People’s Court (“Wuxi Court”) refused to recognize and enforce an arbitral award issued by the ICC Court of Arbitration in Shanghai in the Züblin case,1 many practitioners deemed that Chinese courts would decline opportunities for foreign arbitration bodies to carry out arbitration in China. However, the recently published PRC Supreme People’s Court (“SPC”) instruction in Longlide Packaging Co. Ltd. v. BP Agnati S.R.L. may suggest otherwise.

Continue Reading Does Supreme People’s Court’s Decision Open the Door for Foreign Arbitration Institutions to Explore the Chinese Market?

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and He Shan from AnJie Law Firm

At present, most Chinese financial institutions are paying quite close attention to the ongoing process of Chinese participation in the implementation of FATCA. It is heard that the Chinese government has made its decision to sign the bilateral with the U.S. government. If this is true, Chinese financial institutions will undertake many more obligations. Some other countries have already signed this kind of treaty. FATCA is like a storm sweeping the whole world and will rewrite the financial order all over the world. At this moment, it is necessary to know that in general, FATCA has already become a buzzword in the financial area.

Continue Reading General introduction on FATCA

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) from AnJie Law Firm

On June 11, 2014, China’s State Administration for Industry and Commerce (SAIC) released the latest draft [1] of regulations designed to implement the Anti-Monopoly Law (AML) with respect to intellectual property rights—Rules of the Administration of Industry and Commerce on the Prohibition of Abuses of Intellectual Property Rights for the Purposes of Eliminating or Restricting Competition (Rules), to solicit public opinions. The Rules describe the authority’s enforcement policies, criteria of proof, and types of acceptable evidence in its analysis of suspected anti-competitive conduct involving IPR. The period of calling for public opinions will expire on July 10, 2014.

Continue Reading SAIC Moves Closer to Antitrust Rules for IP

Authored by He Jing (hejing@anjielaw.com) and Dong Xue from AnJie Law Firm

On May 22 2014, China’s National Development and Reform Commission (NDRC) announced the suspension of the investigation against Inter Digital Communications (IDC), a US wireless technology developer, as the company had submitted detailed  measures to address the regulator’s concerns. What is interesting is the differences in the IDC measures between the press release of NDRC and that of IDC. NDRC states that:

1) IDC will not charge Chinese enter- prises discriminatory and excessive patent licensing fees.

2) IDC will not bundle standard-essential patents (SEPs) with non-SEPs in the patent licence.

3) IDC will not require a Chinese manufacturer to agree to a royalty-free, reciprocal cross-licence.

4) IDC will not force Chinese enterprises to accept unreasonable licence conditions through direct legal action.

Continue Reading Excessive pricing and standard-essential patents

Authored by Michael Gu (michaelgu@anjielaw.com) and Yu Shuitian from AnJie Law Firm

Introduction

On the very last day of the statutory period for a merger review (i.e. June 17, 2014), China’s Ministry of Commerce (“MOFCOM”) rendered its decision to prohibit the proposed shipping alliance among the world’s three largest liner shipping operators, namely, Maersk Line (“Maersk”), Mediterranean Shipping Co and CMA CGM (“P3 Alliance”). The proposed P3 Alliance would be structured as a limited liability partnership in England and Wales. It will be in overall charge of operational matters of all the participating undertakings’ container liner business on the world’s three major shipping routes – Asia to Europe, Transatlantic, and Transpacific. According to MOFCOM’s decision [1] and a statement of the explanations [2], MOFCOM concluded that the P3 Alliance was actually a “close joint operation” and it would have restrictive and anti-competitive effects on the Asia-Europe container shipping market. MOFCOM further pointed out that the parties cannot prove that the positive impact of the proposed alliance will outweigh the negative impact or that the alliance will serve public interest. The parties negotiated with MOFCOM for possible remedial measures for several rounds and submitted a final remedy proposal for review on June 9, 2014. However, MOFCOM observed that the remedy plan lacked legal basis and convincing evidence, thus it cannot resolve MOFCOM’s competition concerns.

Continue Reading No Way: Top Three Shipping Liners’ Proposed Alliance was Blocked by Chinese Watchdog

Authored by Michael Gu (michaelgu@anjielaw.com) and Yu Shuitian from AnJie Law Firm

Introduction

MOFCOM released the amended Guiding Opinions on Notification of Concentration of Undertakings (“Guiding Opinions”) on June 6, 2014. The amendments significantly expanded the content of the previous 2009 version of the Guiding Opinions. The number of articles in the Guiding Opinions is now 30, in comparison to 12 of the 2009 version. This is the third regulation on merger control issued by MOFCOM in 2014. Another merger control related regulation concerning the imposition restrictive conditions is currently being drafted and might be published this year as well. Among other things, four important areas of merger control filing that gave rise to a great deal of discussion in the past have now been clarified under the Guiding Opinions. These four areas include definition of control, calculation of turnover, status of joint venture in identifying concentration and pre-notification consultation.

Continue Reading MOFCOM Updated Rules on Merger Control Filing

Authored by Michael Gu (michaelgu@anjielaw.com) from AnJie Law Firm

Introduction

On March 21, 2014, the PRC Ministry of Commerce (“MOFCOM”) announced that it decided to publicize the decisions of administrative penalties of undertakings which did not submit a notification prior to the implementation of their concentration. These decisions involved undeclared concentrations formally investigated after May 1, 2014 in accordance with the Anti-Monopoly Law (“AML”) of the PRC and the Interim Measures on Investigation of Failure to File Concentration of Undertakings (“Interim Measures”). As for those formally investigated before May 1, 2014, MOFCOM will still impose administrative penalties if necessary but may choose not to announce such decisions. In order to facilitate the implementation of this policy, MOFCOM had set up a hotline phone number (+86 10 65198998) for whistleblower complaints.

Continue Reading Non-filers Beware: MOFCOM Takes More Strict Approach

Authored by Arthur X. Dong (dongxiao@anjielaw.com) & Li Meng from AnJie Law Firm

For the last ten years, whether an arbitration clause such as “any disputes arising from, or in connection with, the execution of this agreement shall be resolved by arbitration” may be applied to an infringement claim has been a topic of heated discussion among the legal practitioners in China.  This is a matter of great concern to arbitration practitioners in China because the case history of Supreme People’s Court has failed to clarify whether the courts or the arbitration tribunal should have jurisdiction over the infringement claims. 

Continue Reading Is an Infringement Claim within the Scope of Arbitration Clause under Laws of PRC?