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Unlike other jurisdictions
where antitrust enforcement is centralized, in China three agencies enforce the
Chinese Anti-Monopoly Law ("AML"). The AML has been in effect since
August 2008 and continues to evolve as these three agencies adopt additional
regulations. Merger enforcement will continue to be a major focus and source
for consumption of time and resources for foreign companies. We may see more
activity in the cartel enforcement area.
On February 16, 2012 the
Beijing office of Sheppard Mullin had a reception to celebrate the opening of
new office space in China World Trade Center in the central business district.
Firm Chairman Guy Halgren welcomed our 120-plus guests. Prior to the reception,
Sheppard Mullin hosted a roundtable discussion on the Anti-Monopoly Law of
China ("AML"). We had 18 participants, including in-house counsel for
major corporations, as well as the German Chamber of Commerce. Our guest
speaker, Mr. Zhang Yuqing, former director general counsel of the Chinese
Ministry of Commerce ("MOFCOM"), who headed the inter-agency group
which developed the AML, spoke on two topics which will probably be "hot"
this year: a new regulation which will fine companies which didn't report their
transactions and went ahead with the transactions, and another regulation that
deals with national security review. Gary Halling, head of Sheppard Mullin's
antitrust practice, spoke about recent enforcement trends in the U.S,
specifically with respect to cartels. Michael Zhang of Sheppard Mullin's
Shanghai office also attended and gave his views on investment structures. The
subsequent discussion among the participants was lively.
Antitrust Roundtable, February 16, 2012
China Anti-Monopoly Law: What might we see in 2012?
Let us begin with a look at the past three years of antitrust enforcement in
China and recent trends in the US. Today, we are lucky to have with us Zhang
Yuqing, former general counsel for MOFTEC/MOFCOM, who led an inter-agency
working group to develop the Anti-Monopoly Law and Gary Halling, head of
Sheppard Mullin's antitrust practice. I will open with a brief summary of some
highlights of antitrust enforcement in China and the US so that we have a
backdrop or framework for our discussion.
China Anti-Monopoly Law: it's still evolving
Unlike other jurisdictions where antitrust enforcement is centralized, in China
three agencies enforce the Chinese Anti-Monopoly Law ("AML"). The
Ministry of Commerce ("MOFCOM") handles mergers, while cases related
to anticompetitive conduct are split between the National Development and
Reform Commission ("NDRC") and the State Administration for Industry
and Commerce ("SAIC"). The NDRC handles price-related violations and
SAIC the non-price related violations. The AML has been in effect since August
2008 and continues to evolve as these three agencies adopt additional
regulations in order to provide more guidance on and clarification of such aspects
as terminology, procedures, and enforcement.
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