Mainland China and Hong Kong recently signed the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region. Historically, it has been impossible for parties to arbitral proceedings with a seat outside mainland China to obtain interim measures from mainland courts. This situation will change completely after the arrangement comes into force.
It has long been disputed whether video or audio recordings can be admitted as evidence in arbitration where they are made without the counterparty's consent. Although the general attitude in this regard has become more relaxed, such private video and audio recordings are not an effective form of evidence, as the counterparty may dispute them for many reasons. Thus, in order for recordings to be accepted as evidence, a number of factors should be considered.
The Changsha Intermediate Court recently ruled on whether the arbitration clause in a share transfer agreement had a binding effect on the petitioner – who was a controlling shareholder of a public company – and a company to which he had intended to transfer his shares. The validity of the arbitration clause hinged on whether a director of the public company who had signed the share transfer agreement on the petitioner's behalf could express the petitioner's intention to arbitrate.
It is generally accepted that when a claim or a debt is assigned, the arbitration agreement attached thereto is also assigned. However, the Supreme People's Court has opined that an arbitration clause contained in a contract for carriage of goods by sea was not binding on an insurer that stepped into the shoes of the insured consignee by way of subrogation.
The Supreme People's Court recently issued a direction that an arbitral award should be refused recognition and enforcement as the arbitration concerned an inheritance dispute and was therefore not arbitrable. However, a request for a declaration of title to a 50% equity share in a company by way of succession could be characterized as a commercial matter.
The People's Bank of China and the Ministry of Finance recently issued the Interim Measures for the Administration of Bond Issuance by Overseas Institutions in the National Inter-bank Bond Market. Among other things, the new measures further clarify the qualification, application procedure, bond issuance, registration, custody and settlement and information disclosure requirements for overseas institutions that issue so-called 'panda bonds'.
The People's Bank of China recently issued a notice to strengthen the provision of cross-border financial network and information services. The notice includes a number of compliance requirements concerning the provision and use of such services, including with regard to overseas providers, domestic users and industry self-discipline.
The China Banking Regulatory Commission's Circular on Matters concerning Regulating Private Lending and Maintaining Economic and Financial Order recently came into effect. The circular was formulated in accordance with various laws and measures and establishes the basis for clarifying credit rules and prohibiting illegal private lending. According to government officials, the circular will be implemented in three stages.
The China Banking Regulatory Commission (CBRC) recently issued its Interim Measures for the Equity Management of Commercial Banks. The measures have tightened the CBRC's regulation of the information disclosure and reporting requirements imposed on material shareholders that have a significant impact on the operation and management of commercial banks established in China.
The State Council recently announced a pilot programme that has lifted the requirements on foreign-invested banks entering the renminbi yuan (Rmb) business market in Beijing until May 5 2018. As a result, foreign-invested banks are no long required to have operated for more than one year before applying to conduct Rmb business in Beijing. The programme is another step towards encouraging foreign investment in the financial sector.
The State Administration of Foreign Exchange recently found 600 websites guilty of illegally providing foreign exchange (FX) margin trading services. The high yields associated with such high-risk investments have led many countries to introduce strict regulations. In China, the financial regulatory authorities have clarified that no legal institutions can conduct FX margin trading business and that those who break the law in order to engage in such business may incur administrative or criminal penalties.
The Shanghai Market Regulation Bureau (SMRB) recently issued a penalty decision addressed to Eastman (China) Investment Management Co, Ltd, a Chinese subsidiary of US Chemical firm Eastman Chemical Company. Since this is the first antitrust enforcement decision to be issued by the SMRB since its establishment, it has drawn significant attention from commentators who have attempted to identify the bureau's enforcement approach.
Although still fairly new, the State Administration for Market Regulation (SAMR) diligently investigated and penalised monopolistic behaviour in 2018, publishing a dozen cases alongside its local enforcement agencies which attracted media attention. Notably, livelihood-related industries (including the pharmaceutical industry) and trade associations appeared to come under the SAMR's spotlight.
The National People's Congress recently passed and published revisions to the Anti-unfair Competition Law. The revisions focus primarily on trade secret infringement, as trade secrets are regarded as one of the core competitive advantages in today's business world. The main amendments include widening the definition of 'infringer', increasing penalties for infringement and alleviating the burden of proof for plaintiffs.
The refusal of the Chinese antitrust authority to green light the Qualcomm/NXP merger garnered significant attention and shone a spotlight on China's merger review practice, particularly with regard to the chip industry. This article provides an overview of Chinese merger control by examining the major chip industry mergers that the former Ministry of Commerce and the current State Administration for Market Regulation have approved with remedies to date.
In 2018 the newly formed State Administration for Market Regulation (SAMR) maintained a rigorous and prudent attitude towards merger control review. There was a significant increase in the number of cases concluded and the efficiency with which they were done so. As regards the cases which were conditionally approved, the SAMR imposed various tailored conditions. In addition, the SAMR investigated more non-filing cases and imposed more penalties on non-filers compared with 2017.
The Communist Party's Central Comprehensive Deepening Reform Committee recently approved the Implementation Opinions on the Reform of the Operation Mechanism of the Oil and Gas Pipeline Network and the establishment of an independent national oil and gas pipeline network company. This initiative will significantly transform China's oil and gas sector into a more competitive and non-discriminatory environment for all players.
As photovoltaic (PV) technology advances, development and construction costs continue to decrease. In 2017 the average construction cost for new PV power plants was 45% lower than in 2012, which led the state to reduce subsidies and ease the pressure on subsidy funds. As such, in May 2018 and January 2019 various government bodies issued two policies concerning PV power generation, which have both contributed to the industry's development.
The Ministry of Justice recently published for public comment the draft Atomic Energy Law, which the legislature had been drafting for nearly 30 years. Together with the Nuclear Safety Law, which entered into force in January 2018, the law is expected to form the fundamental legal framework for China's nuclear energy industry. This article discusses two important issues concerning nuclear energy in China: the relationship between the two laws and the nuclear damages compensation system.
The State Council recently issued Several Opinions on Promoting the Coordinated and Stable Development of Natural Gas. The opinions aim to accelerate the development and use of natural gas in a coordinated and stable manner, advance the energy production and consumption revolution and build a clean, low-carbon, safe and efficient modern energy system. The main purpose of the opinions is to aid in the development of strategies on the comprehensive development of the natural gas industry.
The 2018 negative list was released in the middle of the current Sino-US trade war and is thus largely a gesture to show China's commitment to making consistent, reformative progress towards trade liberalisation. The new negative list has significantly opened the market up to foreign investment, particularly in the energy sector. Among the restrictions which have been lifted are those regarding power grid construction and the exploration and exploitation of oil and natural gas in free trade zones.