Latest updates
Supreme Court decision on non-arbitrability of antitrust civil disputes
AnJie Law Firm- China
- 28 November 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.
CCI fines JDMDA for imposing PIS charges on pharma companies
Vaish Associates Advocates- India
- 28 November 2019
The Competition Commission of India (CCI) recently imposed a Rs80,185 fine on the Jalgaon District Medicine Dealers Association for collecting product information service (PIS) charges from pharma product manufacturers, thereby restricting medicine supplies in the market. Although this order is one in a series imposed by the CCI on chemist and druggist associations, it is the first to impose fines solely for the collection of PIS charges.
Competition authority imposes landmark fine under leniency programme
Moravčević Vojnović and Partners in cooperation with Schoenherr- Serbia
- 28 November 2019
The Commission for the Protection of Competition has published its first leniency decision in a cartel case, following a report by one of the cartel participants. The leniency programme was introduced in 2009 but had yet to yield results. The leniency decision is therefore a watershed moment in the programme's development and signals an improvement in the commission's anti-cartel enforcement record.
Low fine for vertical price fixing against Swiss ski manufacturer after leniency application
Lenz & Staehelin- Switzerland
- 14 November 2019
The Competition Commission (ComCo) recently fined a Swiss manufacturer of skis and other sporting goods Sfr140,000 for vertical price fixing with its dealers. The fine was rather low, as the manufacturer had filed a leniency application and entered into an amicable settlement with ComCo. This settlement decision underscores ComCo's strict approach vis-à-vis hardcore vertical agreements and sheds light on how ComCo views restrictions of selective (online) distribution in Switzerland.
New state aid regime
Moravčević Vojnović and Partners in cooperation with Schoenherr- Serbia
- 14 November 2019
From 1 January 2020, Serbia will have a new state aid regime under the new Act on State Aid Control. One of the goals of the new act is to harmonise Serbia's state aid legal framework with EU law, which will help to advance the EU accession process and the implementation of Negotiation Chapter 8 – Competition Policy. Until now, market participants have not focused on compliance with the state aid rules, likely due to a lack of awareness and relatively lenient enforcement; this is expected to change under the new act.
Competition Board appoints new members: quorum established
ELIG Gurkaynak Attorneys-at-Law- Turkey
- 14 November 2019
Two of the three vacant positions on the Competition Board (the competent decision-making organ of the Competition Authority) have now been filled. Despite the Competition Board's existing backlog, the inauguration of the newly appointed members means that it can now proceed with and resolve contentious matters that were pending on its agenda. The lack of quorum will no longer be a limiting factor for the functioning of the board.
Can transactions 'by steps' circumvent merger control rules?
AnJie Law Firm- China
- 07 November 2019
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.
California's legislature passes bill enhancing antitrust scrutiny of patent settlements
Norton Rose Fulbright US LLP- USA
- 31 October 2019
California's governor recently signed a bill designed to enhance antitrust scrutiny of patent settlements between branded and generic pharmaceutical companies. The bill follows the California attorney general's nearly $70 million settlement in Summer 2019 with several pharmaceutical companies based on patent settlements that the attorney general claimed violated the Cartwright Act and is yet another example of diverging interpretations between federal and state antitrust laws.
CPC fines snack distributor for unfair solicitation of customers
Schoenherr- Bulgaria
- 17 October 2019
The Commission on the Protection of Competition (CPC) recently fined a snack distributor 4% of its annual turnover for the unfair solicitation of customers. The commission relied on its earlier practice to determine whether a promotional campaign launched by the distributor had infringed the Competition Protection Act. This decision is a helpful reminder that in order to avoid competition law violations, companies must carefully consider which prizes to offer in promotional campaigns.
Recent developments regarding attorney-client privilege
Nagashima Ohno & Tsunematsu- Japan
- 17 October 2019
According to the Organisation for Economic Cooperation and Development (OECD), Japan is one of only three OECD jurisdictions to not recognise attorney-client privilege. In response to discussions and lobbying, the Diet has announced amendments to the Anti-monopoly Law which will partially introduce attorney-client privilege in administrative investigations pursuant to ordinances under the law or certain prescribed guidelines.
Hart-Scott-Rodino annual report confirms likelihood of challenge for transactions subject to second requests
Norton Rose Fulbright US LLP- USA
- 10 October 2019
The Federal Trade Commission and the Department of Justice's Antitrust Division recently released the Hart-Scott-Rodino Annual Report for Fiscal Year 2018, covering 1 October 2017 to 30 September 2018. This report is the first opportunity to review data regarding the merger challenges issued exclusively during Trump's administration. The data underscores the importance and benefit of advance planning and strategy to avoid a second request investigation whenever possible.
Fines issued for cartel activity, price coordination and non-notification of merger
Gorrissen Federspiel- Denmark
- 03 October 2019
Several fines were handed out during Summer 2019 for Competition Act infringements. A group of cases regarding bid rigging in the demolition and plumbing industries were settled with fines issued to companies and management. In addition, the Danish association of camera distributors agreed to pay a fine for price coordination and Circle K Denmark A/S was fined for infringing merger control rules.
Supreme Court comments on anti-competitive vertical agreements
Schoenherr- Poland
- 26 September 2019
The Supreme Court recently explained that the Office for Competition and Consumer Protection does not have to identify all of the parties to an anti-competitive vertical agreement in decisions issued in such cases. This matter has been the subject of debate in Poland for some time, with some commentators viewing it as a possible violation of an organiser's right to a defence. It is evident from this judgment that such arguments will be unsuccessful in the courts.
ComCo reduces antitrust fines due to damages compensation paid to cartel victims
Lenz & Staehelin- Switzerland
- 26 September 2019
The Competition Commission (ComCo) recently closed its investigations into bid rigging in the construction industry and issued fines of Sfr11 million, an amount which would have been much higher had the commission not deducted the damages compensation paid by the cartelists to the victims from its claims. By introducing the possibility of compensating cartel victims for damages in antitrust proceedings, ComCo has chosen to advocate civil antitrust law to the detriment of its leniency programme.
High court settles constitutional challenges to Competition Act
Vaish Associates Advocates- India
- 26 September 2019
In April 2019 the Delhi High Court disposed of 12 writ petitions filed by 10 car manufacturers and India's largest music label and movie studio. The writ petitions had challenged the main provisions of the Competition Act 2002 and were filed against a common order passed by the Competition Commission of India, which had found that 14 car manufacturers had been dominant in their respective markets and abused this dominance by preventing the establishment of an aftermarket in India.
Petrobras closes abuse of dominance investigations through divestment commitments
BMA Barbosa Mussnich Aragao- Brazil
- 26 September 2019
State-owned oil and gas company Petrobras recently reached two settlements with the Administrative Council for Economic Defence to close five investigations into alleged abuses of dominance in the oil refining and domestic natural gas markets. The settlements have drawn significant attention, as they constitute the first time that divestment commitments have been adopted as a remedy in a dominance case.
Amendments to Competition Act on horizon
Schoenherr- Slovenia
- 19 September 2019
The Ministry of Economic Development and Technology is contemplating significant amendments to Slovenia's antitrust and merger control proceedings and has prepared a draft amendment to the Prevention of Restriction of Competition Act. However, the ministry has yet to communicate when the proposed amendments will be placed in the legislative proceeding of the National Assembly and it remains unclear when the draft amendment will come into effect and how it will be worded.
Compensating consumers may save reputation
Schoenherr- Hungary
- 19 September 2019
Misleading business-to-consumer information may lead to significant fines. Two recent Hungarian Competition Authority (HCA) decisions prove that the HCA has maintained its position as a watchdog of both consumer rights and fair competition. In both cases, the companies were investigated by the HCA because they had omitted to tell customers important information, thereby harming them.
Competition Board orders gym franchiser to revise non-compete and non-poaching clauses
ELIG Gurkaynak Attorneys-at-Law- Turkey
- 19 September 2019
The Competition Board recently published the results of its preliminary investigation into a gym franchise business following a complaint that its franchising agreements violated Law 4054 and the Block Exemption Communique on Vertical Agreements. The board ordered the franchiser to revise its non-compete and non-poaching clauses to comply with competition law in terms of duration, geographical area and written consent.
Supreme Court permits material seized during dawn raid to be used as evidence
Vaish Associates Advocates- India
- 19 September 2019
On 15 January 2019 the Supreme Court allowed the Competition Commission of India's (CCI's) appeal against a Delhi High Court order which had prohibited the CCI director general from acting on the evidence seized during a dawn raid of 19 September 2014. The dawn raid in question was the first to be conducted by the director general and formed part of the investigation into JCB India Limited's alleged abuse of its dominant position.
