On June 26, 2019, the State Administration for Market Regulation (hereinafter “SAMR”) promulgated three interim provisions in implementing Anti-Trust Law, all of which would come into effect on September 1, 2019. Respectively, these new regulations would govern three categories of monopolistic behaviors: monopoly agreements, abuse of dominant market position, and abuse of administrative power to exclude or restrict competition.
SAMR’s triple guidance on antitrust enforcement came against the backdrop of the “three-in-one” anti-trust law enforcement agency reform in 2018. Against such background, SAMR aims to unify the fragmented tripartite enforcement scheme as existed previously where three separate agencies shared overlapped authorities. These new regulations, as the … Read the rest
What Blocks the Enforcement of Chinese Foreign Anti-Bribery Law?
In 1977, U.S. Congress enacted the Foreign Corrupt Practices Act of 1977 (FCPA), the first law specifically targeting at extraterritorial briberies to foreign public officials. Likewise, in 2011, China enacted a foreign anti-bribery provision, Criminal Law Article 164(2), which forbids “giving foreign public officials or international organization’s officials assets and properties in order to make improper business benefits.” However, although China did not totally ignore the provision, it is not substantially enforced.
The Chinese government did not totally ignore this enactment. For example, the Chinese Supreme Procuratorate once demonstrated interest to set rules about foreign anti-bribery. Some huge SOEs (State Owned Enterprises) also set compliance programs for … Read the rest
CEPA is an acronym for the Mainland China and Hong Kong Special Administrative Region Closer Economic Partnership Arrangement. The Investment Agreement and Agreement on Economic and Technical Cooperation (Ecotech Agreement) establishes the dispute resolution mechanism for CEPA. Between the Mainland and Hong Kong, because of political reasons, the dispute resolution part is empty for 14 years. And since mediation is part of dispute resolution, it is unnecessary to list them separately. Later, the mediation mechanism is detailed. In this article, the author will discuss the dispute resolution mechanism and mediation mechanism.
In the Ecotech Agreement, Article 19 and Article 20 stipulate the dispute resolution mechanism between the investors and the state. … Read the rest
The problem of indoor air pollution caught the public’s attention because of increasing complaints about air condition in rental houses. It started with a widely spread online accusation. A renter, an employee of Alibaba, accused Ziroom, which is one of the leading leasing companies in China, of providing a rental house that failed to meet the national standard of air quality, which allegedly killed the renter. Accordingly, “Ziroom Formaldehyde Incident” immediately became breaking news. In September 2018, 26 Ziroom renters filed a lawsuit against Ziroom in the Beijing East District Court. On November 29th, the court delivered a judgement holding that Ziroom should refund all rent, service fees and air quality testing fees.… Read the rest
The Chinese securities industry has been long plagued with a problem that small investors cannot afford the high cost of seeking a remedy through litigation in securities disputes. Finally, on November 13th, 2018, the Supreme People’s Court (“SPC”) and the China Securities Regulatory Commission (“CSRC”) jointly issued Opinions on Comprehensively Advancing Establishment of Diversified Resolution Mechanism of Securities and Futures Disputes (“Opinion”) to provide a practical non-litigation channel for small investors.
This note gives a preliminary assessment of the Opinion’s securities disputes mediation mechanism. Though the latest mechanism improves the credibility and efficiency of meditation, there are still problems with its sector-based scheme, the sustainability of funding, and protection to individual investors.
Copyright law is a mechanism of protecting economic and moral rights arising from creations of literature, arts, science, engineering and so on. In the mechanism, authors are granted exclusive rights, including but not limited to right to reproduce, right to distribute, right to reform, right to display publicly, right to perform by means of digital devices, right to authorize others to exercise above rights and so on. The goals of copyright law are to encourage creations of individuals, and to promote cultural creation and development of the entire society. The two goals do not always reconcile with each other. When a copyright holder seeks such protection that copyright law does not allow, various defenses against alleged infringements … Read the rest
(This drawing shows that “being put on the blacklist, a dishonest person who refuse to pay salaries to workers, is denied for applying for”government’s fund, government purchasing, biding for government project, production license, qualification examination, bank loans, market license, tax priority, honors”, copyrighted at http://www.gov.cn/xinwen/2018-08/24/content_5318132.htm)
In China, interagency coordination at the level of the central government is a great challenge. A modern government faces complicated social issues and must divide the responsibility and create agencies for specific things. The government ordinarily creates related agencies to deal with the same or similar issues, while the task for each agency is part of a larger whole.
This way, however, produces redundancy, inefficiency, gaps, and profound coordination challenges.… Read the rest
In the e-commerce market, quite a few platform operators in China – such as JD, Gome, and PDD (PinDuoDuo) – require suppliers to accept a Wide Retail Most-Favored-Nation Clause (“RMFN Clause”).This Clause requires suppliers to promise the platform that it will grant it equally favorable terms as granted to any other platform. VIP.COM,the largest e-commerce platform in South China, also uses that Clause. This article shows the anti-competitive effects of RMFN clause gravely overwhelms the pro-competitive effects. In recent years, RMFNs have been scrutinized by the US Justice Department, the European Commission, as well as the national competition authorities of various EU member states.
China is the biggest E-commerce market in the world. However, … Read the rest
Qianhai Pilot Free Trade Zone (“Qianhai”), an innovative area in Shenzhen, aims to create an effective and more transparent antitrust enforcement mechanism. Qianhai is seeking to serve as a role model for the country by improving the transparency of antitrust investigation. The Guidelines on Anti-monopoly Work (“Guideline”) promulgated by the Qianhai Management Committee (“Committee”) is a big step towards achieving this goal.
This article, divided into five sections, provides an overview of how the Guideline improve antitrust transparency. Section One explains the problem of transparency of antitrust investigation in current laws and practices. The next three sections articulate three important institutional reforms in the Guideline: … Read the rest
A statutory damages system is indispensable to intellectual property protection in China. A draft of Shenzhen’s local government legislation, the “Regulations on the Protection of Intellectual Property Rights of Shenzhen Special Economic Zones” sparked many discussions in China’s intellectual property law community because of its proposal of maximum damages of 5 million yuan in cases where the proceeds of infringement are difficult to determine. Commentators praised the draft as the most stringent intellectual property protection regulation in Chinese history. However, the proposal was not included in the final legislation issued in early January 2019. The reason may be that a new approach is stipulated in the draft of the Fourth Amendment of Patent Law, issued … Read the rest