August 2, 2008
Antimonopoly law comes into effect
This is a bit belated; the Antimonopoly Law came into effect on Aug. 1. Many of the necessary accompanying regulations remain unissued, however, and the antimonopoly authority contemplated by the law remains undesignated. Here's a good article from Caijing on the problems (subscription required to read it all). And here's a comment from attorney Paul Jones, who's been following it:
It is now August 1, 2008 in China and thus the new 反垄断法 or Anti-Monopoly Law has come into effect.
Unfortunately none of the 40 odd regulations or guidelines that are rumored to have been drafted has been adopted yet, and only one, the Merger Notification Regulation, has even been released for consultation. Some Chinese commentators have described this situation as “embarrassing.”
The web site Of the Supreme People’s Court even carries an article regarding a Notice or Circular from the SPC to China’s courts advising them on how to deal with proceedings to enforce provisions of the new law:
But the Notice or Circular itself is still not available online. That is a shame because it raises some interesting issues. It has been known for some time that the Intellectual Property sections of China’s courts would be assigned to also deal with AML cases, but the article further states that this is because intellectual property and AML cases are “related” and these benches will be hearing cases about the abuse of intellectual property rights. Having the actual wording of the Notice would help to understand this position.
See this article from today’s (July31st) Caijing Magazine: http://www.caijing.com.cn/2008-07-31/110001723.html
One foreign lawyer who attended the seminar on the AML and IP rights in April remarked that he was surprised at how convinced the Chinese participants were that abuse of IP rights was common and that the AML would be used to deal with it.
Many commentators in China are unhappy that the enforcement of the AML has been divided among the Ministry of Commerce (mergers), the State Administration for Industry and Commerce (monopoly agreements and abuse of dominant position), and the National Development and Research Commission (price related matters). No one is quite sure how this is going to work and some are hoping that it is just a temporary situation.
Several articles have mentioned candidates for early enforcement and of course Microsoft is regularly mentioned. But so is Tetra Pak of Sweden. And there has been considerable discussion of the possible application of the AML to foreign car dealerships.
In my view there are interesting times ahead, but they may take longer than expected to emerge.
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