Antitrust

The new Anti-Monopoly Law of the PRC became effective on August 1, 2008. This important law has broad application, and applies to individuals, corporations, trade associations, government agencies and local governments. The Anti-Monopoly Law also has direct significance for international transactions, as it applies to conduct outside China that affects competition within China. Corporate activity deemed to be monopolistic conduct is expressly prohibited, and certain agreements, abuse of dominant market position and business concentrations that may have anti-competitive consequences may be subject to regulatory scrutiny.

JT&N lawyers have closely followed the drafting progress of the Anti-Monopoly Law for years and have commented on many of the drafts. Simultaneously with the formal enactment of the law, 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 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 operate skillfully and efficiently 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 deciions at the Supreme People’s Court Intellectual Property Division, which has jurisdiction over private lawsuits.

JT&N regularly counsels clients on the Anti-Monopoly Law for compliance purposes as well as in the transactional context. Representative services include:

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
  • Review of business practices for antitrust issues, including review of business agreements such as distribution agreements, and 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
Pre-merger antitrust review
  • Advice to clients regarding the necessity for filing an antitrust review request
  • Should filing be recommended, we advise on optimal filing strategies
  • Assisting in the preparation of filing documents, engaging experts for economic analysis, and communication with MOFCOM in the antitrust review
Litigation and government investigations
  • JT&N routinely represents clients who are involved in U.S. antitrust litigation proceedings
  • With our substantial experience in government investigations and administrative litigation, we are well positioned to advise and represent clients in private antitrust litigation as well as government 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 -- the relationship between competition and intellectual property right protection is a major concern of the Anti-Monopoly Law, and the law contains a specific provision on antitrust and IPR abuse that restrain competition. The new draft Patent Law of the PRC also has provisions aimed at addressing the relationship of patent rights with competition. The firm’s strength in the area of intellectual property allows us to leverage our expertise in IPR and antitrust, and benefit our clients with tightly integrated advice.
  • Antitrust and Unfair Competition -- The PRC Anti-Unfair Competition Law has been in force for 15 years. This law and the Anti-Monopoly Law overlap with one another in some of the conduct they regulate. We have a long history of advising clients on the Anti-Unfair Competition Law, and this experience gives us insight into the newly effective Anti-Monopoly Law.
  • 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.