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August 2018 marks the tenth anniversary of the implementation of China's Anti-Monopoly Law. As a basic law for maintaining fair competition in the market, the Anti-Monopoly Law has played a vital role in China's market economy over the past decade. In the past ten years, both the legislation activity and law enforcement practice of the Anti-Monopoly Law have developed rapidly. China has become one of the three major anti-monopoly law enforcement jurisdictions in the world comparable to US and EU for the reasons that China has handled a series of globally-influential cases, e.g. blocking Coca-Cola's acquisition of Huiyuan, penalizing Qualcomm's abuse of dominance over patent licensing, punishing Tetra Pak's abuse of dominance in the food packaging market, and deciding Huawei v. IDC case.


At the beginning of a new decade of anti-monopoly enforcement and with the consolidation of three antitrust agencies into the State Administration for Market Supervision (SAMR), the SAMR will exercise centralized power and law enforcement resources and it is believed that China will witness intensified antitrust enforcement in future. Furthermore, under the background of Sino-US trade war, the risk of anti-monopoly investigations faced by multinational corporations, especially American companies, is getting higher and higher, which will poses an unprecedented challenge to company's legal compliance and even certain business model.


However, intensified anti-monopoly law enforcement and increasingly prosperous anti-monopoly civil litigations may also give opportunities for companies to participate in fair competition in the market. For example, antitrust lawsuits and investigations about whether certain business models are illegal (such as retail price fixing, exclusive dealing, Qualcomm's patent licensing, Google's Android licensable smart mobile operating system, Apple's closed iOS, etc.) are vital to these companies. An increasing number of companies are using antitrust laws as a weapon to serve their business strategy in China and even globally. This one-day seminar will cover all types of monopoly activities and analyze the most updated cases and enforcement trends from a practical point of view.


1. Monopolistic Agreements


(1)"Normal communication" between enterprises may be illegal

Illegal risk of information exchange: Enterprises shall not exchange sensitive information. Enterprises shall avoid attending meetings organized by industry associations to exchange sensitive information.


(2)Price constraints between upstream and downstream customers may be illegal

Fixed and restricted resale price maintenance agreements signed between upstream and downstream customers might be deemed as illegal, especially for law enforcement. Once such agreement is signed, even if it is not implemented, it will be recognized as illegal.


(3)Resistance to investigations may face severe punishment

In the face of dawn raids or other investigations, refusal to cooperate with anti-monopoly law enforcement agencies may result in high penalty amount or be directly fined for not cooperating with the investigation.

【Typical Case】NDRC's penalty decision on Medtronic (Shanghai) Management over price monopoly agreements


(4)How to apply and secure the leniency treatment


(5)How to raise a complaint to win business opportunity or competitive advantage

Enterprises can raise a complaint against their competitors/customers/suppliers to antitrust enforcement agencies on the ground of anticompetitive issues.

【Typical Case】Downstream OEMs report Qualcomm; Downstream customers report price-fixing agreements between Samsung, Hynix, and Micron; Global Foundries report its competitor TSMC; Healthcare reports local TDI manufacturers for alleged price monopoly


(6)Antitrust litigation as a powerful competition strategy

Enterprises can either file a complaint to anti-monopoly law enforcement agency or file a lawsuit to the court.

【Typical Case】Ruibang v. Johnson & Johnson; Healthcare v. Fujian Fuhua and others

Multinational corporations cannot respond passively, they shall actively use the Anti-Monopoly Law to protect their legitimate interests.


2. Abuse of Dominance


(1)Factors for determining market dominance

Market share cannot be used as a sole basis for determining market dominance. However, except the Internet industry, market share in other industries remains an important factor for determining market dominance.


(2)Abuse of market dominance

In the process of conducting transactions, multinationals with superior positions should avoid imposing excessively unfair or unreasonable trading conditions or abusing their bargaining power. Small and medium-sized enterprises can take various measures such as compliant or litigation as countermeasures to safeguard their legitimate rights and interests for fair competition.

【Typical Case】Luckin Café v. Starbucks


(3)New Types of Antitrust Risks in Common Business Practice: A Case Study of Loyalty Rebates

Enterprises shall be aware of those activities that were penalized in the previous cases, regardless of the fact that such activities are not expressly prohibited under the Anti-Monopoly Law.

【Typical Case】SAIC's penalty decision on Tetra Pak

Enterprises shall also be also aware of those acts that have been identified and penalized (e.g. reverse payment, MFN clauses) by foreign anti-monopoly law enforcement agencies.


3. Abuse of Intellectual Property


(1)Antitrust enforcement on SEP remains vital

Antitrust enforcement agencies still focus on competition concerns regarding the licensing of standard essential patents. With the implementation of 5G standard, enforcement on standard essential patents will continue to be intensified in future.

【Typical Case】NDRC's penalty decision on Qualcomm


(2)Antitrust litigation on SEPs

SEP implementers should consider adopting the means of compliant or litigation to restrict the strong bargaining power of SEP licensors.

【Typical Case】Huawei v. IDC

SEP implementers gradually recognize China as an essential jurisdiction for patent and antitrust litigation.

【Typical Case】Apple v. Qualcomm

When SEP implementers encounter patent infringement lawsuit alleged by SEP licensors, SEP implementers should actively consider antitrust defense and file an antiturst lawsuit.


(3)SEP licensor's litigation strategy

SEP licensors may consider initiating a lawsuit to confirm non-violation of antitrust laws, thereby charging a legitimate and reasonable license fee.

【Typical Case】Qualcomm v. MeiZu


4. Merger Control


(1)When triggering a merger filing obligation

As long as change of control + turnover standard is met, the M&A transaction needs to be filed.

If the M&A transaction shall be filed but failed to do so, certain enterprises are not only subject to the penalty, but also run the risk of stock price fluctuations (if applicable) and reputational damages. In addition, law enforcement agencies will keep a close eye on all non-filing cases in the past


(2)Make use of the opportunity of objection/opinion submission to oppose/delay the merger filing process of competitors/suppliers/customers

If a company fails to bid in an M&A transaction or is in conflict with a competitor's M&A transaction, it may consider filing an objection or opinion letter to the anti-monopoly law enforcement agency and suggesting remedy measures or even block decision.


(3)Political risk in Merger Review

In the context of Sino-US trade war, certain M&A transactions in sensitive industries may encounter more stringent antitrust review than ever before. Enterprises shall be fully prepared for China-specific remedies for the transaction.

So far China has only blocked two transactions that could seriously harm market competition, but law enforcement agency increasingly delay the review progress of certain major transactions and thus could result in a de-facto block of a merger.

【Typical Case】Qualcomm/NXP


5. Administrative monopoly


(1)Overview of fair competition review system

According to the Opinions of the State Council on Establishing a Fair Competition Review System in the Construction of a Market System, fair competition policy has become the basis of market norms. It is of positive significance for multinationals further entering into the Chinese market and seeking fair and comprehensive national treatment.


(2)Litigation for the violation of fair competition rights

If the administrative agency abuses its administrative power to directly or indirectly benefit the competitor or hurt the trading opportunity of the enterprise, the affected enterprise can file a corresponding administrative lawsuit.

【Typical Case】Shenzhen Sware Technology v. Guangdong province's Department of Education


(3)Administrative monopoly cannot be used as a legitimate defense for illegal activities

When an administrative agency organizes, or instructs enterprises to reach a monopoly agreement, the enterprises shall be still liable for the illegal activities.

【Typical Case】Anhui AIC fined three companies for dividing the market of payment cipher device in Anhui province through entering into a monopolistic agreement under the guidance of the local banking regulator.


The Training will be in Chinese

Agenda

8:45 AM

15 mins

Registration

9 AM

180 mins

Morning Session

12 PM

60 mins

Lunch Break

1 PM

5 PM

Afternoon Session

Speakers

Tickets

Employee of Member Company

Please register and pay by August 17, 2018

RMB 1,650
Non-Member

Please register and pay by August 17, 2018

RMB 2,150

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If you cannot attend a training for which you have registered, please cancel your registration no later than five business days prior to the training. If you fail to notify AmCham China of your cancellation in a timely fashion, you will be charged for training costs. To cancel you can: 1) email training@amchamchina.org, or 2) cancel online if you registered for the training through the website. Your cooperation in this matter supports AmCham China in maintaining the quality of its trainings and is appreciated by your fellow members and the organization.
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