PRACTICES

To maximize the protection of your legitimate rights and interests
JINCHENG TONGDA & NEAL
ANTI-MONOPOLY AND ANTI-UNFAIR COMPETITION
OVERVIEW

The new Anti-Monopoly Law of the PRC went into effect on August 1, 2008. This important law applies broadly to individuals, corporations, trade associations, government agencies and local governments, and also has direct significance for international transactions, as it applies to conduct outside China that affects competition within China. Monopolistic conduct and abuse of dominant market position are expressly prohibited, and business concentrations that may have anti-competitive consequences are subject to regulatory scrutiny.

JT&N lawyers closely followed the drafting progress of the Anti-Monopoly Law for years and commented on many of the drafts. As soon as the law was formally enacted, the firm began advising clients on the Anti-Monopoly Law for compliance purposes as well as in transactional matters. We filed one of the first pre-merger antitrust review requests with the Ministry of Commerce (MOFCOM) on behalf of a client. The firm’s clients for antitrust matters include leading technology companies, large financial institutions and multinational conglomerates.

JT&N’s extensive experience with unfair competition litigation and arbitration in China has positioned the firm to advocate effectively on behalf of clients. The Anti-Monopoly Law provides for enforcement by administrative agencies as well as private enforcement via civil litigation. The agencies responsible for enforcement include the Ministry of Commerce (MOFCOM), which is responsible for pre-merger antitrust review, the National Development and Reform Commission (NDRC), responsible for pricing conduct, and the State Administration of Industry and Commerce (SAIC), responsible for other monopolistic conduct. JT&N closely follows the development of the law and related regulations published by those bodies, as well as decisions of the Supreme People’s Court.

JT&N regularly counsels clients on the Anti-Monopoly Law for compliance purposes as well as in the transactional context. Our antitrust practice includes:

Transactional and Compliance

Advising on the adoption of corporate policies or the adaption of existing global policies to meet the requirements of the Anti-Monopoly Law and devise strategies for compliance;

Reviewing business practices for antitrust issues, including review of business agreements such as distribution agreements, and review of business conduct such as participation in trade associations, meetings with competitors and dealings with customers and suppliers

Advising clients on the training of managers and employees for purposes of antitrust compliance

Representing clients in communication with MOFCOM, NDRC, SAIC and other PRC government agencies on Anti-Monopoly Law issues

Pre-merger antitrust review

Advising  clients regarding  the need to file an antitrust review request

Should filing be recommended, advising on optimal filing strategies

Assisting in the preparation of filing documents, engaging experts for economic analysis, and communicating with MOFCOM in the antitrust review

Litigation, administrative proceedings and government investigations

JT&N routinely represents PRC and international companies who are involved in U.S. or PRC antitrust litigation or proceedings.

With our substantial experience in formal proceedings, we are well-positioned to advise and represent clients in pre-litigation investigations.

Because antitrust law frequently implicates other legal disciplines, the JT&N antitrust team works closely with other practice groups within the firm, including M&A and intellectual property experts, in order to provide cross- disciplinary services to our clients. For example, we advise clients on:

Antitrust and Intellectual Property, specifically the relationship between competition and intellectual property right protection. The firm’s strength in the area of intellectual property allows us to leverage our expertise in IPR and antitrust, and provide our clients with highly integrated advice.

Antitrust and Unfair Competition, specifically the overlap between the PRC’s Unfair Competition Law and its Anti-Monopoly Law. We have a long history of advising clients on the Unfair Competition Law, and this experience gives us insight into the relationship between the two laws and how companies should comply with or seek remedies under these two laws.

Antitrust and M&A – M&A is a major practice of the firm. Our antitrust practice informs the advice we give to our clients in their M&A transactions.


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