Following the resumption of bilateral trade treaty talks between China and the United States, a 100-day plan was mooted which promised to improve trade ties going forward. One area of focus in this regard has been the foreign ownership limits that apply to inbound investment in Chinese financial services groups, including those pertaining to the country's insurance industry. This policy shift has given rise to expectations that further foreign investment in the insurance industry will increase significantly.
The National People's Congress Standing Committee recently passed the long-awaited amendments to the Anti-unfair Competition Law, which will take effect in January 2018. This is the first time that the law has been amended and it will have a significant impact on business practice in China. In particular, the amended law includes a new section addressing internet-related unfair competition and offers practical and clear guidance for business operators on how to compete legally and fairly online.
China's shift towards a knowledge-based digital economy is fuelling growth in the insurance sector, which aligns with the government's plan to double the rate of insurance penetration by 2020. By this date, insurance premium income is expected to have reached Rmb4.5 trillion. If this aim is achieved, China will have usurped the United States to become the world's largest insurance market, which bodes well for overseas insurers looking to participate in the domestic market.
At the recent China Competition Policy Forum, a Price Supervision and Anti-monopoly Bureau official commented on the potential enactment by the National Development and Reform Commission (NDRC) of regulations on standard-essential patent licensing practices. The NDRC's proposal aims to ensure greater consistency with the Anti-monopoly Law and develop a consistent approach to the enforcement of IP rights-related anti-competitive conduct.
A new wave of 'insurtech' companies (ie, insurers engaging with online distribution models and tech companies foraying into insurance) are recognising the gains to be made by entering into this emerging market. However, these developments by no means spell the end of the larger, more traditional Chinese insurers, which are adapting their longer-term business development strategies in response.
Following the recent final judgment of the Yunnan Province Higher People's Court, the curtain has – for now – fallen on the Yunnan Ying Ding v SINOPEC refusal to deal case. This case is unique for several reasons. Among other things, it is reportedly the first antitrust dispute to involve the Chinese petroleum industry. In addition, it is the first case in which the plaintiff's claims have concerned refusal to purchase.
The National Development and Reform Commission recently penalised two Chinese pharmaceutical undertakings for alleged collective abuse in the isoniazid active pharmaceutical ingredient market. This was the first time that the Chinese enforcement authorities applied the rules of the Anti-monopoly Law to a case concerning collective abuse.
The Ministry of Commerce (MOFCOM) recently released an exposure draft of the amendments to its Provisions on the Antitrust Review of Concentrations for public comment. The amendments aim to improve the functionality, comprehensiveness and quality of the provisions by incorporating MOFCOM's experience and its existing best practices. In general, this move to amend the provisions is praiseworthy. However, several issues will need to be resolved through the public consultation process.
The healthcare industry has gradually become a key focal point of Anti-monopoly Law enforcement in China. Between the implementation of the law in 2008 and the end of July 2017, the National Development and Reform Commission and the State Administration for Industry and Commerce concluded a number of anti-monopoly penalty cases and accumulated significant industry experience. As such, healthcare enterprises are likely to face increasing anti-monopoly compliance challenges in future.
The National Development and Reform Commission recently published its Guidelines on Trade Association Pricing Activities. The guidelines clarify trade associations' different pricing activities and categorise them according to their associated level of legal risk. As the guidelines advise associations on how to carry out their activities, they will have a direct impact on legal risk assessments and the day-to-day business of trade associations and their members.
Recent ransomware attacks across the globe have once again brought to the fore the all-encompassing enterprise risk management challenge that cyber-risks present to corporations. The raft of operational consequences of such an attack present an ever-burgeoning opportunity for insurers to expand further into this potentially lucrative new line of business. This is particularly pertinent in China, where there has been a shift towards increasing digitisation and automation in various high-tech industries.
In a recent Zhejiang Provincial Price Bureau case, 17 paper manufacturers were fined a total of Rmb7.78 million for reaching and implementing a horizontal monopoly agreement. Further, the price bureau ordered the Fuyang Paper Manufacturers Association, which had played a leading role in organising and facilitating the conspiracy, to be deregistered. This is the first time that a Chinese antitrust authority has invoked Article 46(3) of the Anti-Monopoly Law to deregister a trade association.
The regulations concerning investment limits and the required qualifications for shareholders that want to invest in Chinese insurers continue to be a focal point for potential investors. The China Insurance Regulatory Commission recently published the Administrative Measures for Equities of Insurance Companies (Draft for Comments), which make fundamental changes to the existing regulatory framework.
At present, the recently adopted China Risk-Oriented Solvency System (C-ROSS) is the only regime which regulates mainland insurers' capital adequacy. By appropriating the most useful features of existing global regimes, C-ROSS has formulated a risk-based supervision regime that is on a par with global standards, yet remains tailored to the specifics of the Chinese insurance market.
When declarations of death are sought for insured persons, two issues arise: whether the declaration relates to accidental death; and whether it falls within the insurance period. The popular viewpoint is that a declaration of death is regarded as resulting from an accident, in which case the insurer must provide compensation. While the declaration may be dated after the period of cover under the insurance contract, this does not absolve the insurer of responsibility to compensate the claimant.
At the first meeting between Chinese President Xi Jinping and US President Donald Trump, the two leaders set the tone for future cooperation on a wide range of issues, not least market access between the two countries. According to Chinese and US officials, better access for US financial sector investments into China was mooted for inclusion as part of a 100-day plan to improve trade ties. This could have notable implications for the Chinese insurance industry.
The evidential rules that apply to litigation in certain jurisdictions, especially those regarding the allocation of the burden of proof, have a significant impact on the ultimate result of a case. Private antitrust litigation is often highly complex and thus puts the plaintiff at a disadvantage. However, since special evidential rules were introduced in 2012, the success rate of plaintiffs in private antitrust litigation has started to increase.
The China Insurance Regulatory Commission (CIRC) recently penalised two insurers for illegal practices with regard to the use of insurance funds. The penalties came just a few days after the CIRC chair stated that the regulator will continue to put significant pressure on companies and maintain close control over disorderly expansion and radical investment in order to eliminate potential risks. Companies that refuse to rectify their actions will be subject to the CIRC's strictest penalties.
After a nearly five-year investigation, the State Administration for Industry and Commerce (SAIC) recently concluded its Tetra Pak case. In a landmark decision, the SAIC imposed its largest ever antitrust penalty on the Swiss packaging giant for its abuse of a dominant position in China and ordered it to cease its illegal conduct. The SAIC's innovative approach to assessing unspecified monopolistic behaviour is a milestone in antitrust law enforcement and its decision will serve as a valuable precedent.
China's surety bond market underwent significant development in 2016 and surety bonds have become one of the most important methods for securing a financial guarantee. However, due to a lack of clear Supreme Court guidance on the matter, the laws that apply to surety bonds issued by insurers in China are still the subject of much debate. One key issue is whether the Guarantee Law's accessory principle applies to surety bonds issued by insurers in China.