by Yasue (Becky) Nao Koblitz and Ling Zhang
On June 29, 2012, MOFCOM and
other agencies issued a "Implementation Opinion" (which contains
broad sweeping policy statements). PRC companies should be careful not to
interpret this Opinion as carte blanche for anti-competitive behavior while
investing overseas. The Opinion contains broad sweeping policy statements regarding
Chinese foreign investment. From the perspective of U.S. companies, what should
they keep on their radar screen?
PRC companies should be careful
not to interpret as carte blanche for anti-competitive behavior a recent policy
statement by the Chinese government encouraging PRC companies to coordinate
their activities and cooperate with each other while investing overseas. The
statement also highlights the need for foreign companies to be on guard for
possible anticompetitive conduct by their PRC business partners (and
On June 29, 2012, thirteen agencies-including the three agencies responsible
for enforcing China's Anti-Monopoly Law ("AML"): the Ministry of
Commerce ("MOFCOM"), National Development and Reform Commission
("NDRC") and the State Administration for Industry and Commerce
("SAIC")-issued a jointly drafted "Implementation Opinion"
entitled "Encouragement and Guidance on Private Capital's Healthy
Development." The Opinion contains broad sweeping policy statements
regarding Chinese foreign investment. It is one of many follow-up opinions to
the policy statement of May 2010 issued by the State Council regarding the
development, management and regulation of private investment, which is
considered to be one of the milestone policy statements after the 2005
statement on private investment. Although strictly speaking State Council and
agency opinions are not law, the provincial governments and Chinese companies
are well advised to and do take such statements seriously.
Under the first heading of the Implementation Opinion, entitled "To
Strengthen Macro Guidance on Private Enterprises' Outbound Investments",
there is language potentially ripe for misinterpretation: "The government
intends to guide the enterprises to intensify the coordination and
cooperation among each other to prevent disorderly and malicious
Access the full version of "Is China Giving Carte Blanche
for Anti-Competitive Conduct by PRC Companies Doing Business Overseas?"
with your lexis.com ID. Additional fees may be incurred.
If you do not have a lexis.com ID, you can purchase this commentary and additional Emerging Issues Commentaries from the LexisNexis Store.
Lexis.com subscribers can access the complete
set of Emerging Issues Analyses for Antitrust & Trade Law and
the Antitrust & Trade Area of Law page.
more information about LexisNexis products and solutions connect with us
through our corporate site
Yasue (Becky) Nao Koblitz is Special Counsel in the Corporate practice group in the firm's Beijing office. Ms. Koblitz's 20-plus years of legal experience spans three continents
and broad areas of expertise. She was born and raised in Tokyo, Japan
and attended Stanford University and American University Law School in
the United States. Becky began her legal career with the U.S. Department
of Justice's Antitrust Division, and moved on to corporate law in
Berlin, Germany, where she spent much of the last decade practicing real
estate, finance and corporate law. Becky is returning to her "antitrust
roots" in the Beijing office where she will manage and develop the
antitrust, competition law and white-collar practices. Ms. Ling Zhang is an associate in the Corporate Practice Group in the firm's Beijing office.