China's antitrust enforcement agencies were reorganised in 2018. As such, new legislation and enforcement actions in 2019 attracted significant attention from practitioners and in-house counsel, with a view to gaining an insight into the new agency's enforcement trends and priorities (if any). This article underlines the most significant developments in legislation, public enforcement and private litigation in 2019.
The topic of whether antitrust civil disputes are arbitrable has been hotly debated in China in recent years. There are few case law precedents in this regard and local courts have taken different positions regarding this issue. That said, the Supreme People's Court made its stance clear in a recent decision which found that an arbitration clause could not exclude the jurisdiction of Chinese courts in antitrust civil disputes.
A violation of the notification or standstill obligation is commonly called 'gun jumping' and can have significant legal consequences. This article examines Canon's acquisition of Toshiba Medical and the legal consequences of gun jumping in China, as well as the risks of implementing a transaction 'by steps' to circumvent the standstill rules. Recent strengthened enforcement measures are also briefly examined.
The State Administration for Market Supervision recently promulgated the Interim Provisions for Prohibiting Monopoly Agreements. Although the draft provisions introduced a safe harbour clause for non-IP-related monopoly agreements, this has been removed from the final version. As debate continues as to whether to introduce a safe harbour clause to Chinese legislation, this article examines the history of the safe harbour rule and the potential reasons why it would not apply to all monopoly agreements.
The Ministry of Commerce of China recently announced the establishment of an Unreliable Entity List (UEL) targeting foreign entities and individuals that (among other things) fail to comply with the principles of the market economy or threaten China's national security. It is anticipated that the UEL will rely heavily on the Anti-monopoly Law, especially in relation to foreign entities with a noticeable market presence in China.