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JINCHENG TONGDA & NEAL
Anti-monopoly
概要

JT&N’s expertise in the PRC anti-monopoly arena is broad and deep, reflecting not only the strengths of the Anti-Monopoly Practice, but also reflecting the firm’s renowned Trade, M&A, Capital Markets, and Intellectual Property Practices, among others.  The JT&N Anti-Monopoly Practice offers clients ready access to the broad cross-disciplinary resources that only a major law firm can deliver.

Among our distinct advantages, JT&N’s Anti-Monopoly team is led by experienced partners and is supported by a deep bench of highly qualified team members with strong expertise in a wide range of different practice areas, encompassing extensive experience in transactions involving a wide range of industries, including those that are highly regulated.  Example areas of industrial expertise include:

  • Agriculture

  • Automotive

  • Aviation, Transportation, and Shipping

  • Banking, Finance, and Financial Services

  • Consumer Products, Manufacturing and Sales

  • E-Commerce

  • Education

  • Electronics

  • Energy and Projects

  • Entertainment, Media, Art and Sports

  • Environmental

  • Food Manufacturing, Retail, and Food Service

  • Healthcare, Life Sciences, Biotechnology and Pharmaceuticals

  • Hospitality and Tourism

  • Information, Communications and Technology (ICT)

  • Insurance and Asset Management

  • Manufacturing

  • Natural Resources and Mining

  • Real Estate, Construction, and Infrastructure

Our Anti-Monopoly Practice supporting attorneys are ranked among the best in China, and routinely top ranked in the annual Chambers Asia-Pacific and Global Guides, among other leading international appraisals.

Main Practice Area Descriptions

The JT&N Anti-Monopoly Practice principally engages in four main categories of legal services: (i) merger control, (ii) behavioral investigations, (iii) litigation, and (iv) compliance, each as outlined below.

Merger Control

Merger control-related services comprise legal advice pertaining to pre-transaction analysis and evaluation, transaction structure and planning, regulatory filings, and coordination with relevant regulatory authorities.  Required legal services may vary considerably from transaction to transaction, but may include any or all of the following:

  • Evaluate whether the proposed transaction triggers filing obligations and/or raises other competition-related issues; evaluate and propose alternative transaction structures as needed.

  • Formulate plans for notification of concentration of undertakings, prepare attendant filing materials, and manage communications with regulatory authorities in order to obtain requisite approvals.

  • Respond to any competition concerns raised by regulatory authorities in connection with complex merger filings, e.g., by means of industrial surveys and quantitative economic analysis.

  • Prepare and file complaints on behalf of clients with relevant regulatory authorities in respect of third-party M&A transactions which adversely affect clients’ interests.

Behavioral Investigations

Behavioral investigations-related services comprise legal advice either in connection with investigations by regulatory authorities regarding potentially monopolistic behaviors, or with filing complaints with regulatory authorities, and may include any of the following:

  • Representation in connection with regulatory inquiries with respect to potential client infringement on PRC anti-monopoly restrictions.

  • Prepare and file complaints on behalf of clients with relevant regulatory authorities in respect of possible third-party monopoly agreements or abuse of dominant positions that affect clients’ interests.

  • Assist clients to conduct anti-monopoly risk assessments, and to formulate and enact improvement plans.

Litigation

Anti-monopoly litigation-related services primarily comprise legal advice arising when civil or administrative litigation is threatened or commenced, and may include any or all of the following:

  • Representation of international and domestic clients in Chinese courts in connection with civil and administrative litigation involving anti-monopoly and anti-unfair competition issues.

  • Representation of domestic enterprises in international venues in connection with civil and administrative litigation involving anti-monopoly and anti-unfair competition issues, including but not limited to, anti-monopoly litigation, class action lawsuits, and U.S. International Trade Commission (USITC) investigations pursuant to Section 337 of the U.S. Tariff Act of 1930 (“Section 337 investigations”).

Compliance

Anti-monopoly compliance-related services comprise legal advice pertaining to business operations of clients which potentially infringe on anti-monopoly restrictions, e.g., monopoly agreements and the abuse of dominant market position, and may include any or all of the following:

  • Assist clients to conduct business model anti-monopoly risk assessments.

  • Review client commercial contracts, business policies and compliance guidebooks with respect to potential infringement on anti-monopoly restrictions; evaluate and propose alternative contract provisions and/or other solutions as needed.

  • Assist clients to establish and/or improve anti-monopoly compliance risk management systems.

Practice Area Key Strengths

The long-established JT&N Anti-Monopoly Practice fields a well-trained team of legal practitioners who furnish a robust capacity for handling complex, high-stakes legal challenges arising in a regulatory or civil context.

Experienced and Dynamic Practice

The JT&N Anti-Monopoly Practice is a leader in its field, standing among the first Chinese law firms to become engaged in servicing anti-monopoly and unfair competition requirements, filing one of the very first notifications of concentration of undertakings with the Ministry of Commerce (MOFCOM). The Practice has accumulated extensive experience in the provision of relevant legal services to domestic and international clients, and has played an instrumental role in the development, refinement and application of applicable Chinese laws and regulations, including the recently revised PRC Anti-Unfair Competition Law.  Our experience includes merger control, behavioral investigations, litigation and antitrust compliance.  We also monitor the latest theoretical and practical developments, e.g., relating to competition analysis tools, industrial organization economics, price economics, etc., and regularly participate in academic exchanges with China's top anti-monopoly research institutions and other experts.  As a result, today, our Practice is more vital than ever, demonstrating a strong upward trajectory which is solidly grounded in practical experience.

Professional Standards of Performance

JT&N has participated extensively in cross-border legal matters, accumulating invaluable experience in the delivery of legal services to sophisticated clients in the context of complex and demanding multinational matters.  Our senior practitioners are perennially recognized as market-leading attorneys who are highly-ranked in the legal industry, and who hold leading positions in important national and local professional organizations.  These practice leaders supervise a strong team of talented associates, ready and able to reliably delivery of legal service products calibrated to an international standard of performance.  Of particular importance, the Anti-Monopoly Practice offers strong multi-lingual service support (e.g., Chinese/English and Chinese/Japanese), helping to promote seamless cooperation with international clientele as well as international legal counsel and service providers.

Smooth Communication Channels and Multi-Sector Understanding

The JT&N Anti-Monopoly team has established and maintained positive working relations and effective communication mechanisms with Chinese competition authoritity.  JT&N has been frequently and favorably recognized by the authority for its contributions and performance, and our Firm has also been frequently invited to participate in relevant professional symposiums in order to discuss anti-monopoly legislation and enforcement, including participation in drafting or amending related regulations.

Our team also maintains effective communication channels with an array of China industrial associations and regulators.  Such channels enable us to maintain awareness and understanding of contemporary developments and trends affecting key industries.  This strength is essential in connection with formulating relevant perspectives with respect to industrial, economic, and political factors bearing on the competition aspects of commercial transactions or activities, as well as reinforcing our capacity to advise clients with respect to compliance requirements and regulatory communications.

Teamwork

At JT&N, we believe that effective teamwork is a hallmark of our success, and we practice and emphasize this quality at every level.  For example, key practice areas, e.g. the Trade, M&A, and Intellectual Property Practices, closely cooperate with the Anti-Monopoly Practice to provide efficient and effectively tailored solutions to satisfy respective client requirements.  Other specialist attorneys also stand ready to lend the appropriate degree of support whenever needed.  Finally, JT&N maintains long-standing close collaborative ties with many law firms from around the world, including the United States (U.S.), Canada, South America, Europe, Africa, Australia, and throughout Asia, facilitating the achievement of remarkable results with an impressive degree of efficiency.

Practice Area Engagement Examples

There are many notable examples of the Anti-Monopoly Practice’s effective performance.  In an exposition of the four main practice areas of merger control, behavioral investigation, litigation and compliance, three selected representative engagements are identified and described below with relative detail.

Section 337 Investigations Example: U.S. Steel Corporation

In April 2016, US Steel Corporation (USS) filed a complaint with the USITC, alleging that Chinese steelmakers and distributors conspired to fix prices, stole trade secrets and circumvented duties by false labeling.  In May of the same year, the USITC voted to initiate a Section 337 investigation, aiming to provide relief for possible unfair trade actions, including: (i) unfair methods of competition; and (ii) unfair acts in the importation and sale of products in the U.S.  This constituted a high-profile case, in that it represented the first time that a U.S. industrial circle has attempted to apply a Section 337 investigation to potential monopolistic behavior by the Chinese steel industry, and it drew substantial media attention. 

JT&N,in cooperation with an international law firm, jointly represented the accused Chinese steel enterprises, and achieved significant results.  For example, we applied to the USITC administrative judge to issue an order of suspension for the case, securing additional time for the enterprises to prepare their response to the investigation. In the review process, our efforts earned support from the USITC, who ruled in our clients’ favor with respect to all controversial points. In March 2018, USITC determined that USS was unqualified to file a lawsuit for anti-monopoly investigation under Section 337, and terminated the antitrust investigation on the Chinese steelmakers.

Litigation Example: In re: Vitamin C Antitrust Litigation, case number 1:06-md-01738, in the U.S. District Court for the Eastern District of New York

In 2005, a group of U.S. businesses filed a class action against a group of Chinese manufacturers, including CSPC Weisheng Pharmaceutical (Shijiazhuang) Co., Ltd., for price-fixing vitamin C exported to the U.S.  Vitamin C is commonly used in vitamin supplements, beverages and foods, and market analysis indicated that about 80 percent of vitamin C used in the U.S. was produced in China.  This was a landmark case, constituting the first U.S. case that alleged Chinese export cartel activity, extending more than ten years from its inception.

As counsel to CSPC Weisheng Pharmaceutical (Shijiazhuang) Co., Ltd. and its parent company, China Pharmaceutical Group Ltd. JT&N provided critical legal advice and negotiation support in connection with the attainment of the client’s commercial objectives in securing a settlement of the class action law suit.  Two other defendants also settled the law suit.  Even though the U.S. Second Circuit Court in 2016 ruled in favor of Hebei Welcome Pharmaceutical Co. Ltd. and overturned the District Court’s order for the payment of $153 million for price rigging, the ruling was finally overruled and the case was remanded for a retrial by the U.S. Supreme Court. In this complicated and long-lasting case, JT&N successfully assisted the client to settle the case and avoid a protracted law suit.

Merger Control Example: Hebei Iron & Steel Group (HBIS) acquisition of a 51% equity interest in the Switzerland based Duferco International Trading Holding S.A. (Duferco)

In 2014, JT&N represented HBIS, serving as lead counsel in its acquisition of a 51% equity interest in the Switzerland based Duferco International Trading Holding S.A., the world’s largest steel trade and comprehensive service provider.  This constituted the first recorded transaction where Chinese steel and iron companies acquired an international commercial network.  The total value of this deal was approximately US$400 million.  Notifications of concentration of undertakings were required in multiple jurisdictions, including China, the European Union, South Africa, Ecuador and the U.S. 

As chief global counsel for the merger filing, among other things, JT&N assisted HBIS in completing procedures for notification of concentration of undertakings in China within a limited timeframe.  We also facilitated effective and smooth communications and cooperation among trading parties and local partner law firms throughout the course of effecting the project's global filing obligations in different jurisdictions, successfully obtaining all antitrust approvals needed for the project in the shortest feasible time period, and facilitating the smooth delivery of the project.


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