Anti Monopoly Law of China

The Anti-Monopoly Law of China

The Anti-Monopoly Law of China

Definition

The Anti-Monopoly Law of China in narrow sense refers only to the Anti-Monopoly Law of the People’s Republic of China passed by the National People’s Congress on 30 August 2007 and implemented as of 1 August 2008 (hereinafter the “AML”) while in broad sense to the anti-monopoly legal system of China including not only the AML and the post-AML ancillary legislative and legal documents for the purpose of enforcing the AML but also all pre-AML legislative and administrative document with anti-monopoly nature, as well as regulatory or administrative enforcement, private enforcement and judicial procedures. The definition used here refers to its broad meaning...

History of the Legislation

It is commonly recognized that the legislation of the anti-monopoly law in China initiated since August 1987 when an AML drafting team was set up by the former Legal Affairs Bureau of the State Council to formally proceed to draft the AML. Prior to it, however, following the economic reform and opening in China, the State Council already promulgated The Provisional Rules on Expediting Economic Alliance^[1] as early as on 1 July 1980 aiming to “break down the territorial blockades and departmental barriers”, followed by The State Council Provisional Rules on the Launching and Protecting the Socialist Competition^[2] on 17 October 1980 aiming to “step by step reform the existing economic management system and actively promote and protect the smooth competition”, as well as the State Council Rules on Further Expediting and Protecting Socialist Competition^[3] on 23 March 1986, all of such three documents with the nature of early embryo of anti-monopoly law were intended to break down the historical planning economic monopoly in the pre-1980’s era and to promote the initial and basic market economy and competition.

Since August 1987 onward, the significant milestones of the anti-monopoly law legislation in China are as follows:

* 1988, the drafting team produced the Anti-Monopoly and Anti Unfair Competition Provisional Regulations (Proposal Draft).

• 2 September 1993, the Anti Unfair Competition Law was promulgated by the 8th Session of the NPC Standing Committee, implemented as of 1 December 1993.
• 1994, the AML was listed in the legislation plan by the 8th Session of the NPC Standing Committee and the former National Economic and Trade Commission and the State Administration for Industry and Commerce were delegated to be jointly responsible to draft the AML; in May, the AML Draft Steering Team and AML Draft Working Team were set up
• July 1997, the 1st Version of the AML Outline Draft was produced.
• 1998, the AML was listed in the legislation plan by the 9th Session of the NPC Standing Committee; in November, the 2nd Version of the AML Outline Draft was produced
• June 2000, the 1st Draft of the AML (Soliciting Opinion Version) was produced
• December 2003, the AML was listed in the legislation plan by the 10th Session of the NPC Standing Committee as one of the fundamental economic legislations
• 2004, the AML was listed in the legislation plan by the State Council, on 26 February, the Ministry of Commerce submitted the AML (For Review Version) to the State Council
• February 2005, the AML was listed in the legislation plan by the NPC Standing Committee; in the same year, the State Council set up AML Review and Modify Steering Team, AML Modify Working Team and AML Review and Modify Expert Team to review and modify the AML (Draft)
• 7 June 2006, the AML (Draft) was reviewed, discussed and passed in principle by the State Council Executive Meeting that also decided to submit to the NPC Standing Committee for review upon further revision; from 24 to 29 June, the 10th NPC Standing Committee conducted the first read of the AML (Draft)
• from 24 to 29 June 2007, the 10th NPC Standing Committee conducted the second read of the AML (Draft) and third read from 24 to 30 August

* 30 August 2007, the 10th NPC Standing Committee passed and promulgated the AML

* 1 August 2008, the AML was put into enforcement

• Post-AML Legislative Practice and Development
• Landmark Judicial Judgements and Rulings

* Huawei vs. IDC cases

* Ruibang vs. Johnson & Johnson case

* Tencent vs. Qihu 360 case

The Four Cornerstones of the Anti-Monopoly Law of China

The basic structure and framework of the anti-monopoly law of China up to date include the following legislations and the implementing legal documents (the box at the top contains the post-AML ancillary legal documents, the box in the middle contains the pre-AML laws and legal documents which are still in force, while the box at the bottom contains those laws and legal documents that are still in the processes of either drafting or soliciting opinion):^[4]

	Four Cornerstones
Monopoly Agreement (Chapter 2) Abuse of Dominant Market Position (Chapter 3)	Concentration of Undertaking (Chapter 4)	Abuse of Administration Power (Chapter 5)
Abuse of IPRs (Article 55) Legal Applicable Exceptions (Articles 15, 55 and 56)
NDRC Rules Against Price Monopoly NDRC Rules on Administrative Enforcement Procedures Against Price Monopoly SAIC Rules on Administrative Investigation and Sanction Against Cases Concerning Monopoly Agreement and Abuse of Dominant Market Position SAIC Rules for Prohibition of Monopoly Agreements SAIC Rules for Prohibition of Abusing of dominant position	Rules on Thresholds for Notification of Undertakings’ Concentration Guidance on the Definition and Determination of the Relevant Market MOFCOM, PBOC, CBRC, CSRC, CIRC Rules on the Calculation of Business Revenue for the Notification of Financial Institutions’ Concentration MOFCOM Guidance on the Notification of Undertakings’ Concentration MOFCOM Guidance on the Documents for the Notification of Undertakings’ Concentration MOFCOM Guidance on the Procedures of the Anti Monopoly Review of Undertakings’ Concentration Measures on the Notification of Concentration of Undertakings Measures on the Review of Concentration of Undertakings Provisional Rules on Divesture of Assets or Business from Undertakings in Concentration Notice on the Establishment of National Security Review on Foreign Investors’ Merger with or Acquisition of Domestic Enterprises MOFCOM’s Interpretation of the Measures on the Notification of Concentrations of Undertakings and of the Measures on the Review of Notified Concentrations of Undertakings MOFCOM Regulations for the Implementation of the Security Review System for Mergers with or Acquisitions of Domestic Enterprises by Foreign Investors MOFCOM Working Guidance on Regulations for the Implementation of the Security Review System for Mergers with or Acquisitions of Domestic Enterprises by Foreign Investors MOFCOM Interim Rules on the Assessment of the Competitive Effects of Concentrations of Undertakings MOFCOM Measures on the Investigation and Sanction Against	SAIC Rules on Procedures of Prohibition of Abuse of Administrative Power to Exclude or Restrict Competition SAIC Rules Prohibition of Abuse of Administrative Power to Exclude or Restrict Competition
Anti Unfair Competition Law Price Law Tendering and Bidding Law Provisions on Administrative Sanction Against Illegal Price Practices Provisions on the Procedures of Administrative Sanction Against Illegal Price Practices The Supreme Court Judicial Rulings on Several Issues for the Application of Law Concerning the Proceeding of Unfair Competition Civil Cases (Fa Shi [2007] No. 2)	Regulations on Foreign Investors’ Merging with and Acquisition of Domestic Enterprises MOFCOM Guidelines for Anti-Monopoly Notification for Merger with and Acquisition of Domestic Enterprises	Provisions of the State Council On Prohibiting Regional Blockade in Market Economic Activities
NDRC Special Provisions on Administrative Investigation and Sanction Against Illegal Pricing Practices During the Irregular Market Pricing Fluctuation Period (Soliciting Opinion) SAIC Guidelines on Anti-monopoly Enforcement in the Field of Intellectual Property Rights (Draft for Internal Discussion)	Interim Measurers on Investigation and Sanction on Suspected Monopolistic Concentrations of Undertakings Below AML Notification Threshold (Draft) Interim Measurers on Collecting Evidence of Suspected Monopolistic Concentrations of Undertakings Below AML Notification Threshold (Draft) Guidelines on Definition of Undertakings Involving Concentration Guidance on Evaluation of the Effect of Exclusion and Restriction of Competitive in Horizontal Concentration of Undertakings Regulations for the Implementation of the Antimonopoly Review of Concentration of Undertakings Provisions on Additional Restriction Conditions for Concentration of Undertakings Interim Provisions on Applicable Standards for Simple Cases of Concentration of Undertakings

	Anti Monopoly Law
Enforcement	Judicial
Administrative Enforcement (Chapter 6)　　　　 Private Enforcement	Judicial Procedures	Liabilities[5]	Bilateral International Cooperation
Extraterritoriality (Article 2) Leniency (Article 46.2)
Supreme Court Notice on Diligently Studying and Enforcing the Anti-Monopoly Law Supreme Court Judicial Rulings on Several Issues Concerning the Application of Law in Proceeding Civil Cases Caused by Monopolistic Conducts (Fa Shi [2012] No. 5)	Article 53 Supreme Court Notice on Diligently Studying and Enforcing the Anti-Monopoly Law Supreme Court Judicial Rulings on Several Issues Concerning the Application of Law in Proceeding Civil Cases Caused by Monopolistic Conducts (Fa Shi [2012] No. 5)	Article 46 Monopoly Agreements: stop illegal monopoly action confiscating illegal revenue penalty of 1-10% of total sales revenue of the previous year for those not yet implemented the monopoly agreement, fine of below RMB500 Article 46 Trade Associations: fine of below RMB500,000 for series case, withdraw the registration of the trade union Article 47 Abuse of Dominant Market Position: stop illegal monopoly action confiscating illegal revenue penalty of 1-10% of total sales revenue of the previous year	Declaration on the Start of a Dialogue on Competition by the EU and China Memorandum of Understanding on Cooperation between the Office of Fair Trading of the UK and the NDRC of China Memorandum of Understanding on Cooperation between the Office of Fair Trading of the UK and the SAIC of China Memorandum of Understanding on Antitrust and Antimonopoly Cooperation between the Department of Justice and Federal Trade Commission of the US and NDRC, MOFCOM and SAIC of China Guidance for Case Cooperation between the Ministry of Commerce and the Department of Justice and Federal Trade Commission on Concentration of Undertakings (Merger) Cases Memorandum of Understanding on Cooperation between the Competition and Consumer Commission of Australia and the SAIC of China Memorandum of Understanding on Cooperation between the Administrative Council for Economic Defense of Brazil and the SAIC of China Memorandum of Understanding on Cooperation between Korean Fair Trade Commission and the NDRC，MOFCOM and SAIC of China Memorandum of Understanding on Cooperation between European Commission and the NDRC and SAIC of China

The doctrines of “illegal per se rule” and “rule of reason” in the anti-monopoly law of China

The doctrines of “illegal per se rule” (“per se rule”) and the “rule of reason” are two landmark and the most important legal theories in the history and development of the anti-trust law not only in its country of origin but also in many other countries and jurisdictions all over the world. The doctrines make a clear and straight definition in legal theory and can be efficiently and effectively implemented in practical enforcement. The fact that the doctrines in the United States have directly, effectively and successfully regulated the market situation and competitive practices, protected and promoted the market competition, and the anti-trust legal theory and practice have been consistently evolving and developing to cope with the market, economic and competition development, makes the doctrines significantly influential in the competition law legislation and enforcement in other countries and jurisdictions.

Literally, the doctrines of “per se rule” and the “rule of reason” can be found in the AML context as well as in the Supreme Court Judicial Opinion on one hand, but it is found otherwise in several court judgement on the other hand.

Legislation

During the processes of the AML legislation, the AML drafting team had not only studied and referenced to the greatest extent the statues of the EU competition law legislation as a result the basic structure and contents of the AML are as close and similar as the EU competition law,^[6] but had also studied the US antitrust legal theory and cases and consulted the US antitrust law experts. As such, the spirit of the doctrines of “per se rule” and the “rule of reason” indeed exists or influences the creation of the AML.

In the legislation, as far as the literal provisions of the AML is concerned, it is found that Articles 13 (horizontal agreement), 14 (vertical Agreement) and 17(1) (abuse of dominant market position) as one category using the literal word "prohibit" without any pre condition, while there is a condition of "reasonable cause" for the "prohibition" in Articles 17(2) to (6) (abuse of dominant market position without justifiable cause) as another category, as a result making literal difference that there should be different legislative purposes and intents as well as different legal meanings in the AML between the above two categories: with regard to the unconditional prohibition in the first category on one hand, any agreement or conduct breaching unconditional prohibition will then constitute a violation of law without regard to the result or effect caused by the violation, as such these unconditional prohibitions can be treated or argued to have the nature or character of "illegal per se" and accordingly it is an alternative expression of "illegal per se rule" in the AML; while with regard to Articles 17(2) to (6), on the other hand, the literal words "reasonable cause", given its obvious literal meaning, will then be an alternative expression of the "rule of reason".

Supreme Court Judicial Opinion

In the judicial opinion, however, unlike the EU Court of First Instance in Case T-112/99 M6 and Others v Commission^[7] has expressly denied the existence of "rule of reason" in the EU competition law, China Supreme Court by far has yet clearly clarified and it has been hesitating in its Judicial Opinions on Several Issues Concerning the Application of Law in Proceeding Civil Cases Caused by Monopolistic Conducts (Fa Shi [2012] No. 5)^[8] (hereinafter the “SCJO”) if the "illegal per se rule" and the "rule of reason" exists in the anti-monopoly legal system of China or can be invoked in the practical enforcement cases or not, in other words, it still remains unclear if Articles 13, 14 and 17(1) as one category would have the nature of "illegal per se" and only Articles 17(2) to (6) as another category subject to the "rule of reason", or if there is any different legislative purpose and intent and different legal meaning or not between the two categories. As a result, also unlike the EU Court of First Instance in the same Case T-112/99 that has clearly stated that the pro- or anti-competition aspects should be examined within the scope of Article 85(3) of the EU Treaty, otherwise “Article 85(3) of the Treaty would lose much of its effectiveness if such an examination had to be carried out already under Article 85(1) of the Treaty”,^[9] China Supreme Court has further left unclear if the "reasonable cause" provided in Articles 17(2) to (6) is limited to the pre-set scope in Article 15 or all relevant pro- or anti-competition aspects of undertaking and the relevant market can be taken into account and examined according to the doctrine of "rule of reason".

In the Supreme Court Judicial Oipnions on Several Issues Concerning the Application of Law in Proceeding Anti-Monopoly Civil Dispute Cases (Soliciting Comment Version) Circulated by the China Supreme Court on 25 April 2011 (hereinafter the “SCJO SCV”), unlike in the literal provisions of the AML, it seems to draw no distinction as between Articles 13, 14 and 17(1) as one category Articles 17(2) to (6) as another category as initially drafted as in Article 8^[10] of the SCJO : “The victims of the monopoly agreements shall have burden of proof against the alleged monopoly agreements for the effects of the exclusion or restriction of competition. The victims shall not have burden of proof against such monopoly agreements for the effects of the exclusion or restriction of competition if the monopoly agreements fall within the scope of Articles 13(1) to (5) or Articles 14(1) and (2), except for if the alleged undertakings to the said monopoly agreements are able to prove otherwise by the contrary evidence.” which could be read as that both Articles 13(1) to (5) or Articles 14(1) and (2) are subject to effect examination (rule of reason).

In the official SCJO, however, Article 7 of the SCJO merely provides that “the defendant shall have burden of proof for no effect of exclusion and restriction of competition for acts falling within the monopoly agreements under Articles 13(1) to (5)”, which draws an obvious distinction between the formally equal Article 13, per se illegal unless defendant proves otherwise, and Article 14, subject to plaintiff’s burden of proof on effect (or rule of reason) examination.^[11] Article 8^[12] of the SCJO also seems to have drawn an unclear distinguish on burden of proof between Article 17(1) from Articles 17(2) to (6) by saying “plaintiff shall [only] have burden of proof for the dominant position, and the abuse of such dominant position by the defendant in the relevant market”, alleged defendant monopoly conduct will be justified unless plaintiff proves illegal by effect examination (or rule of reason); interestingly, this Article 8 seems to make AML Article 17(1) equal to Articles 17(2) to (6) that both are subject to the effect examination.

Judicial Judgements

This topic, especially as to if there is any difference between Articles 13 and 14, remained unclear until the Ruibang vs. J&J case that Shanghai High Court made a very interesting judgement on 1 August 2013 in which including an interesting analysis on the interrelations between AML Articles 13 and 14.^[13] Shanghai High Court examined and concluded that “the effects of exclusion and restriction of competition are the constitutive and necessary factors in the examination of monopoly agreement with clause of restricting the minimum resale price as referred to in Article 14 of the AML”.^[14] From this ruling and the position that Shanghai High Court allowed both plaintiff and defendant to submit and cross examine the reports prepared by the economic experts on the relevant markets, J&J’s products and its market share, the effects of pro- and anti-competition of the alleged vertical agreement in question with restriction on the minimum resale price, etc., it appears that Shanghai High Court is rather in favour of agreeing to conduct a comprehensive examination of all related aspects in particular of the pro- and anti-competition effects of "Article 14 agreements" in accordance with the doctrine of the “rule of reason”.

Administrative Enforcement

Nonetheless the above, however, in the administrative enforcement, it appears that the NDRC is rather apt to apply the doctrine of “illegal per se rule” directly to the first category (i.e., AML Articles 13, 14 and 17(1)) because of the low difficulty and costs and easy proceeding to apply the “per se rule” in the administrative enforcement of the AML. This is evidenced by the most recent four major cases that NDRC announced during January to August 2013 ^[15] because neither examination nor analysis on the “reason” or “reasonable cause” had ever been made to the effects of restriction or exclusion of competition by the alleged monopolistic conducts. Albeit this has been questioned,^[16] NDRC appears to follow and carry on the strategy and tactics that were adopted in the US in the early stage of the enforcement of Sherman Act at the turn of 19th and 20th centuries to put a direct “illegal per se” effect to the AML Articles 13 and 14. This makes very important sense because it is drawing a boundary line as between the “illegal per se” conducts and agreement and those conducts and agreement with “reasonable cause”.

In a summary, until the Supreme Court clearly interprets this important issue by further judicial opinions or rulings, whether or not the unconditional prohibition in Articles 13 and 14 would equally have similar nature of "illegal per se" and how to distinguish Articles 13 and 14 them from the "reasonable cause" in Articles 17(2) to (6), still remain as an interesting topic in the anti-monopoly legal system in China.

Legal Applicable Exemptions

The AML adopts in Article 15^[17] the same doctrine of “legal applicable exceptions” as in Article 81(3) of the EU Treaty. Unlike the EU competition law that the EU Commission has promulgated and implemented various specific regulations for the purpose of implementing and enforcing Article 81(3), however, several fundamental issues such as the specific contents and criteria of the “legal exceptions”, who has the authority or being authorized to stipulate the implementing rules, by the NPC Standing Committee, the State Council, or the NDRC or SAIC, still remain unclear in the anti-monopoly legal system. In private enforcement, the contents and criteria of the proof of evidences for “reasonable cause” and whether the assessment and comparison between pro-competition vs. anti-competition are limited within the preset scope of AML Article 15 only or can include all reasonable causes in all relevant aspects or elements beyond AML Article 15, also remain unclear.

Some Landmark Cases and Judicial Judgements

There is no precedent case law in China. The judgements, especially those methodological or judicial examinations in the judicial rulings or opinions made by the high court or the Supreme Court in the landmark cases, are commonly studied by law practitioners, academic researchers and sometimes indirectly as a principle or guideline invoked by other courts in the subsequent cases.

'Huawi v. IDC cases'

In 2011, Huawei brought two separate litigations against the same group of defendants of Inter Digital Corporation, Inc. and its affiliated companies (IDC). The first case was brought to Shenzhen Intermediate Court for the judicial ruling on the royalty rate by Huawei to IDC for certain patent licenses ([2011] Shen Zhong Fa Zhi Min Chu Zi No. 857, Case 857) and the second on was also brought to Shenzhen Intermediate Court for damages caused by IDC’s abuse of dominant market position ([2011] Shen Zhong Fa Zhi Min Chu Zi No. 858, Case 858). Both cases were appealed to the Guangdong Provincial High Court.Guangdong Provincial High Court made the final judgement on the first Huawei v. IDC case (Case No. 857) On 16 October 2013 ([2013] Yue Gao Fa Min San Zhong Zi No 305, Judgement 305) and on the second one (Case 858) on 21 October 2013 ([2013] Yue Gao Fa Min San Zhong Zi No 306, Judgement 306). Upon the petition of both Huawei and IDC, both cases were not publicly heard due to the large amount of sensitive commercial and technical information and dada.

The two judgements made by Guangdong High Court are published in which all sensitive information and data are redacted. Both cases and the two judgements, usually treated as one combined case by Huawei against IDC, have been appraised by the China Courts as one of the best 10 AML cases by then, while commented by the public as very controversial. It is interesting and useful to observe and further consider the followings:

(1) In Judgement 305 (Case 857): there is an extremely lack of (1) judicial analysis to justify and support the ruling on choices of Chinese law and the forum jurisdiction of the China court in a royalty rate case arising from, or at least substantially depending on the interpretation of, royalty policy and rules of the European Telecommunications Standards Institute ETSI, which is organized and governed by French law; (2) legal grounds under the current Chinese law on the [discretionary] right of the court in determining a non-tort (or infringement), non-breach of contract, but a pure commercial term as well as its other judicial rulings.

(2) On 14 April 2014, IDC filed a petition to the China Supreme Court for retrial and seeking a dismissal of this judgement or at least a higher, market-based royalty rate. It is currently pending with China Supreme Court.

(3) In Judgement 306 (Case 858), this is rather an “abuse of intellectual property right” case under AML Article 55 than an “abuse of dominant market position” case under AML Article 17, Guangdong High Court finally upheld the initial judgement to judge IDC to compensate Huawei RMB20 millions. this final Ruling covered two AML aspects both of which are not only jurisprudence important but also leading edge. The first aspect is the “extraterritoriality” under AML Article 2, while the second aspect is that the Ruling appears to make use of the “abuse of dominant market position” under AML Article 17 for the “abuse of intellectual property right” case under AML Article 55.^[18] (1) AML Article 2 is itself too general and vague which merely empowers the right and offers possibility to apply “extraterritorial jurisdiction”. As to how to apply such “extraterritorial jurisdiction”, the detailed rules, conditions and criteria in the application, neither AML nor the Supreme Court has yet made any clear implementing regulations, interpretation or guideline, but would rather merely rely on the discretionary power of the competent court. Taking these into account in conjunction with the complicated factors of either or both private and public international laws that may be associated with the application of “extraterritorial jurisdiction” as well as that many other courts may possibly follow after this Ruling to apply the “extraterritorial jurisdiction” in other cases, it appears to be desirable and urgent for the Supreme Court to make judicial ruling as to how to appropriately and delicately apply the “extraterritorial jurisdiction”. (2) Because this Ruling may be a modeling precedent of making use of the “abuse of dominant market position” under AML Article 17 for the “abuse of intellectual property right” case under AML Article 55 or even it is merely an “abuse of dominant market position” case involving intellectual property right elements, how to treat and balance the prohibition of “abuse of intellectual property right” verse the lawful proprietary, exclusive or monopolistic right of the intellectual property right as well as verse the legal exception of application of the AML provided in the same AML Article 55, and how to treat the anti-monopoly provisions provided by the AML verse the lawful proprietary, exclusive or monopolistic right of the intellectual property right provided by intellectual property laws such as Patent Law, all of such complicated and delicate issues remain unclear and uncertain pending the Supreme Court judicial opinion, in order to not only protect competition and prohibit monopoly but also to protect the intellectual property right as well as its lawful proprietary, exclusive or monopolistic right.

It is interesting to note and should not be ignored that NDRC, upon Huawei’s petition (or informant), launched the formal AML investigation against IDC in June 2013. With the high pressure from the NDRC, IDC eventually reached a private settlement with NDRC by making certain commitments leading to NDRC withdrawing the investigation in May 2014. It is widely believed that both courts (of Shenzhen Municipality and Guangdong Province) and NDRC played both judicial and administrative sticks against IDC to support Huawei’s launching and development in the US market.

'Ruibang v. Johnson & Johnson cases' ^[19]

This is the first judicial case and judgement of vertical monopoly agreement under AML Article 14.2, as well as the first case that the High Court (of appeal) overruled the judgement in favour of the defendant made by the Intermediate Court (of first instance).

The fact of the case is simple and straightforward: Ruibang Yonghe Technology Co., Ltd. ("Ruibang"), the plaintiff in this case, is an authorized distributor of Johnson & Johnson (Shanghai) Medical Equipment Co., Ltd. and Johnson & Johnson (China) Medical Equipment Co., Ltd. ("J&J"), the defendants in the case, in the authorized territory under a distribution agreement. Ruibang sued J&J to the Shanghai Pudong New District Court for J&J's partially withdraw of Ruibang's distributorship, taking off Ruibang's distributor deposit and eventually refusing to supply by reason of Ruibang's breach of lowest re-sell price in the unauthorized territory. Both courts (of first instance and appeal) made similar judicial analysis in term of AML Article 14.2, Shanghai New District Court made a judgement on 18 May 2012 (Judgement (2010) Hu Yi Zhong Min Wu (Zhi) Chi Zi No 169) in favour of J&J on the ground of plaintiff's insufficient evidence. Ruibang appealed to the Shanghai High Court and submitted a very comprehensive expert affidavit made by a professor of China Foreign Economic and Trade University, as a defending fight back J&J also submitted the a comprehensive expert affidavit made by a professor of Shanghai Finance and Economic University. The Shanghai High Court conclusively made a judgement on 1 August 2013 (Judgement (2012) Hu Gao Min San (Zhi) Zhong Zi No 63) that overruled the judgement made by the Shanghai Pudong New District Court ruling that J&J had violated AML Article 14.2 and be liable for the judged damages.

This case and its final judgement offer some interesting and valuable observation and inspirations.

(1) Under the AML, the vertical agreement is subject to “rule of reason”, namely, it is not “per se illegal” but very likely “per se challengeable” and “effect” test is necessary to assess if a vertical agreement breaches the AML, or not.^[20]

(2) Four elements in the “effect” test: (1) sufficient competition, (2) market position, (3) motivation, and (4) effects of competition restriction and competition promotion.^[21]

(3) The application of the doctrine of maxim semper necessitas probandi incumbit ei qui agit in the AML private enforcement case.^[22]

'Tencent vs. Qihu 360 case'

This is a case of the “abuse of dominant market position”, the first AML private enforcement case that was initially brought to and examined by the provincial High Court, then appealed to and finally judged by the Supreme Court, and by far, the Supreme Court’s written judgement is the best and most professional, both judicially and technically, judicial judgement of its kind ever amongst all AML cases in China. Given the judicial power and nature of the Supreme Court, this judgement established and reaffirmed several very important judicial rules with precedent case law effect insofar as the private enforcement of AML is concerned.

These important judicial rules include:

(1) reaafirms the doctrine of semper necessitas probandi incumbit ei qui agit (he who alleges must prove) with regard to the allocation of onus probandi (burden of proof) in the AML judicial case

(2) defining relevant market is not a purpose but instead rather a methodology in assessing the relevant undertaking’s market power and the influence power of the alleged monopoly conduct on to the competition, as such it is not compulsory to specifically and exactly define the relevant market in every AML litigation of abuse of dominant market position

(3) an HMT (hypothetical monopoly test) based on tools of SSNIP (small but significant and non-transitory increase in price) or SSNDQ (small but significant and non-transitory decrease in quality) may be conducted in defining the relevant market but should be conducted carefully with cautious

(4) the related market situation and technology development trend post the litigation may be taken into consideration in defining the relevant market

(5) market share is not the only one element in concluding dominant market position

(6) multi elements should be comprehensively evaluated in defining the dominant market position, including but not limited to: (1) the market share of the undertaking in question and the competition situation of the said market; (2) the control ability of the undertaking in question in the said market; (3) the financial and technical status of the undertaking in question; (4) the degree of dependence of other undertakings on the undertaking in question; and (5) the degree of difficulty to access to the relevant markey by other undertakings

(7) if the relevant market is clearly defined and the alleged undertaking does not have dominant market position, normally it is not necessary to conduct an abuse behavior analysis and it can be directly concluded that such undertaking did not have abuse behavior; however, if neither the boundary of the relevant market nor the dominant market position of the alleged undertaking is clear or if the alleged undertaking had dominant market position, “effect examination” may be carried out so as to determine if the alleged conduct was lawful or not

(8) the “tie-in” under the AML is illegal if it meets all of these criteria: (1) the base product and the “tie-in” product are independent to each other, (2) the undertaking has dominant market position in the base product market, (3) certain enforcement implemented upon the buyer who became lack of other options but to accept the tie-in product, (4) the tie-in could not be justified, was contrary to the commercial or consumer practice or ignored the functionalities of the products, and (5) the tie-in gave rise to negative effect to the competition

(9) if an undertaking successfully proved the alleged monopoly conduct was justifiable under AML does not mean such undertaking has automatically and same successfully proved the monopoly conduct has not caused negative effect of exclusion or restriction of competition.

The AML Notification in the Concentration of Undertakings

7.1 It is commonly known and recognized that the investment by foreign investors in the form of M&A (including concentration of undertakings) is subject to the government approval in China which is mainly compromising of the following three parts in accordance with the relevant PRC laws and regulations:

	The China Approval System for Foreign Investment in China
Industrial Policy	Anti-Monopoly Review	Security Review
Industrial Catalogue for Foreign Investments	AML	AML
	Regulations on Foreign Investors’ Merging with and Acquisition of Domestic Enterprises	Regulations on Foreign Investors’ Merging with and Acquisition of Domestic Enterprises
	All relevant law and regulations concerning concentration of undertakings	Notice on the Establishment of National Security Review on Foreign Investors’ Merger with or Acquisition of Domestic Enterprises
		MOFCOM Regulations for the Implementation of the Security Review System for Mergers with or Acquisitions of Domestic Enterprises by Foreign Investors
		MOFCOM Working Guidance on Regulations for the Implementation of the Security Review System for Mergers with or Acquisitions of Domestic Enterprises by Foreign Investors

7.2 In which the thresholds and roadmap for the AML Notification and Review insofar as related to the concentration of undertakings can be summarized as follows:

		global total revenue by all related undertakings in the previous fiscal year exceeds RMB10 billions + total revenue of at least two of all related undertakings in China exceeds RMB400 millions			or			Domestic total revenue in China by all related undertakings in the previous fiscal year exceeds RMB2 billions + total revenue of at least two of all related undertakings in China exceeds RMB400 millions
					meet either			meet neither
timing case by case	pre-consultation							no notification
					notification
					acceptance of notification
Phase 1: 30 days					Phase 1 Review
		1. Necessary for Phase II Review, or Competitors’ Opposition			Unconditional Approval	Conditional Approval	Rejection
Phase 2 Review: 90 days extendable by extra 60 days		Phase 2 Review			End of Notification
		Unconditional Approval	Conditional Approval	Rejection
Administrative review timing case by case		End of Notification	Appealable to Administrative Review	Appealable to Administrative Review		Appealable to Administrative Review	Appealable to Administrative Review
Judicial review timing case by case			Appealable to Judicial Review	Appealable to Judicial Review		Appealable to Judicial Review	Appealable to Judicial Review

7.3 As far as the security review is concerned, according to the related laws and regulations concerning security review, such review may be a separate procedure with regard to the foreign investment in China, but may also be a part of or post-AML notification and review procedures for the foreign investment in China. The procedures and roadmap of the security review can be summarized as follows:

		Notify to MOFCOM Department of Foreign Investment by eligible foreign investors
5 working days		MOFCOM notification to the Joint-Ministerial Panel
5 working days		Joint-Ministerial Panel conduct general review by soliciting opinion from related ministries
20 working days		Related Ministries provide opinion to the Joint-Ministerial Panel
		concern on security impact		no concern on security impact
5 working days		Initiate special investigation process		Joint-Ministerial Panel Notifies MOFCOM
special investigation: 60 working days		Complete special investigation or report to the State Council for decision		End of security review
		Final decision delivered to the foreign investor by MOFCOM
	Unconditional Approval	Conditional Approval	Rejection or rule to withdraw the deal
	End of security review	Appealable to neither administrative nor judicial review	Appealable to neither administrative nor judicial review

7.4 The Legal Liabilities for the violation of the AML concerning the concentration of undertakings are summarized as follows:

AML Article	Type of Activities by Undertakings	Penalties or Liabilities
48	Concentration proceeded	stop the execution of concentration dispose whole or part of its stock or assets, or transfer part of its business within the prescribed time limit adopt other necessary measures to restore the market situation before the concentration fine of below RMB500,000
52	refuse to submit related materials and information, having submitted fraudulent materials or information, having hid, destroyed or removed evidence, or refuse or obstruct investigation in other means	correction fine below RMB20,000 on individuals, and below RMB200,000 on incorporated entities for serious cases, a fine from RMB20,000 to RMB100,000 on individuals, and from RMB200,000 to RMB1,000,000 on incorporated entities criminal liability may be imposed for case of violating criminal law

Administrative, Regulatory, and Judicial Enforcement Agencies

8.1 Under the AML, the hierarchy of the China anti monopoly enforcement and regulatory authorities is as follows:

	State Council
	Anti Monopoly Committee Expert Consultation Panel[23]
NDRC	MOFCOM	SAIC
Price Supervision and Inspection and Anti-Monopoly Bureau	Anti-Monopoly Bureau (State Council Anti-Monopoly Committee Standing Office)	Anti-Monopoly & Anti-Unfair Competition Enforcement Bureau
General Affairs Office, Legal Affairs Division, Supervision and Guidance Division, Price Inspection Division, Fee & Charge Inspection Division, Market Price Supervision Division, No.1 Anti-Monopoly Investigation Division (Service Industry), No.2 Anti-Monopoly Investigation Division (Manufacturing Industry), Competition Policy and International Cooperation	General Affairs Office, Competition Policy Division, Consultation Division, Supervision and Enforcement Division, Legal Division, Economic Division, Coordination Division	General Affairs Division, Anti-Monopoly Enforcement Division, Anti-Monopoly Legal Guidance Division, Anti-Unfair Competition Division, Case Coordination Division

Supreme Court
IPR Tribunal of the Courts of and higher than Intermediate Courts

8.2 In accordance with the State Council General Office Notice regarding the State Council Anti Monopoly Committee’s Key Responsibilities and Members (Guo Ban Fa [2008] No 104), The State Council Anti Monopoly Committee was established on 28 July 2008, whose key responsibilities include: research and draft competition policy, organizing to investigate and evaluate the general market competition situation and publish the evaluation report, produce and promulgate ant monopoly guidelines, coordinate the anti monopoly enforcement, as well as other duties stipulated by the State Council. Its members include^[24]：

Director General:

Wang Yang, Vice Prime Minister

Deputy Director General:

Chen De Min, Minister, MOFCOM

Zhang Ping, Commissioner, NDRC

Zhou Bo Hua, Director General, SAIC

Bi Jing Quan, Deputy Secretary General of the State Council

Members:

Zhang Mao, Vice Commissioner, NDRC

Ou Xin Qin, Vice Minister, MIIT

Yao Zeng Ke, Vice Minister, Ministry of Supervisory

Zhang Shao Chun, Vice Minister, MOF

Gao Hong Feng, Vice Minister, MOC

Ma Xiu Hong, Vice Minister, MOFCOM

Huang Shu He, Vice Commissioner, SASAC

Zhong You Ping, Deputy Director General, SAIC

Zhang Qin, Deputy Director General, SIPO

Zhang Qiong, Legal Office of the State Council (and also as the Head of the Anti Monopoly Expert Panel)

Cai E’sheng, Vice Chairman, CBRC

Gui Min Jie, Vice Chairman, CSRC

Wei Ying Ning, Vice Chairman, CIRC

Wang Yu Min, Vice Chairman, SERC

Secretary General: Ma Xiu Hong

Director of General Office: Shang Ming, Director, MOFCOM AMB

8.3 The Organizational Structure and Responsibilities of the China AML Enforcement and Regulatory Authorities

	State Council Anti Monopoly Committee	MOFCOM	NDRC	SAIC
Bureau in Charge		Anti-Monopoly Bureau	Price Supervision and Inspection and Anti-Monopoly Bureau	Anti-Monopoly & Anti-Unfair Competition Enforcement Bureau and provincial sub-bureaus
Responsibilities	Research and draft competition policy; organizing investigation and evaluation of the general market competition status and publish the evaluation report; produce and promulgate anti-monopoly guidance; coordinate the enforcement actions; and other responsibilities conferred by the State Council.	1. Draft laws and regulation with regard to the concentration of undertakings, as well as ancillary rules and administrative documents; 2. Proceed to the pre-consultation, notification and relevant public hearing, investigation and anti-monopoly review of the concentration of undertakings; 3. Proceed to investigate complaint cases of concentration of undertakings made by the public and sanction illegal conducts; 4. Investigate the monopolistic practice in the international trade and take necessary measure to remove damages; 5. Provide guidance to the domestic enterprises in their anti-monopoly cases outside China; 6. Lead to organize the consultation and negotiation of the multi-l or bi-lateral agreement; 7. Proceed to the multi- or bi-lateral cooperation on competition policy; 8. other responsibilities conferred by the State Council Anti-Monopoly Committee; 9. other responsibilities conferred by the MOFCOM.	1. Provide guidance on the nationwide price supervision and inspection, draft principle, policy, duties, plans and implementing proposal for price supervision and inspection; 2. Supervision and inspection on price reform scheme and price leveraging and control management policy and implementing status, make proposal to strength price leveraging and control management; 3. Organize the supervision and inspection on nationwide prices of the commodity, service, government charge, public fee and charge, to define the boundary between legal requirement and policy requirement and coordinate to resolve the policy issues revealed in the investigation; 4. Investigate and sanction the illegal pricing or charging cases involving central or provincial governments, central enterprises or public services, or social organizations; coordinate to investigate and sanction inter-provincial illegal pricing or charging cases and the significant illegal pricing or charging cases; 5. Proceed to the enforcement, investigation, identifying and sanction against the anti-monopoly price and the significant price monopoly conducts and cases; 6. Organize to proceed to regulate the market price practice and investigate, identify and sanction against significant unfair price practice or cases and responsible for the monitoring and contingency plan and reaction in the case of irregular market price fluctuation; 7. Draft laws, regulations and other rules related to the price supervision and inspection; define various types of illegal pricing or price monopoly practices; 8. Proceed to the administrative review and appeal against the administrative penalty decision made by the provincial price authority; 9. Provide guidance to the nationwide price’s social monitoring, public service, credit system and price complaint; 10. Provide guidance to the professional improvement of the nationwide price supervision and inspection teams; 11. other responsibilities conferred by the NDRC.	Draft the detailed anti-monopoly and anti unfair competition measure and actions; proceed to the anti-monopoly enforcement; investigate and sanction against the unfair competition, commercial bribery, smuggle and the sales of smuggling commodities as well as other illegal economic cases, and supervise to investigate and proceed to the significant or model cases in thy market; other responsibilities conferred by the SAIC.
Personal	totally 19 members consisting of Vice Prime Minister, Deputy Secretary General of the State Council, Minister, Commissioners, Directors General and their deputies[25]	about 30	about 30	about 10

Appendix 1: Other Relevant Legal Documents^[26]

1. 1993年10月4日：国家医药管理局《医药行业关于反不正当竞争的若干规定》
2. 1993年12月24日：《关于禁止有奖销售活动中不正当竞争行为的若干规定》（ 中华人民共和国国家工商局令第19号）
3. 1993年12月24日：《关于禁止公用企业限制竞争行为的若干规定》（中华人民共和国国家工商局令第20号）
4. 1994年6月29日：《国家工商行政管理局关于不正当竞争行为违法所得计算方法问题的通知》 （工商公字［1994］第175号）
5. 1995年2月20日：《关于反对律师行业不正当竞争行为的若干规定》 （中华人民共和国司法部令第37号）
6. 1995年7月6日：《关于禁止仿冒知名商品特有的名称、包装、装潢的不正当竞争行为的若干规定》（中华人民共和国国家工商行政管理局令第33号）
7. 1996年2月14日：中国人民银行《关于颁布《制止存款业务中不正当竞争行为的若干规则》的联合通知》（银发［1996］66号）以及《制止存款业务中不正当竞争行为的若干规则》
8. 1996年4月12日：《建设部、国家工商行政管理局关于禁止在工程建设中垄断市场和肢解发包工程的通知》（建建［1996］240号）
9. 1996年12月4日：《关于营利性保龄球场馆举办高额奖励活动是否属于不正当竞争行为问题的答复》 （工商公字［1996］第386号）
10. 1997年10月28日：《国家工商行政管理局关于医院给付医生ＣＴ“介绍费”等是否构成不正当竞争行为的答复》（ 工商公字［1997］第257号）
11. 1998年1月16日：《关于禁止串通招标投标行为的暂行规定》（中华人民共和国国家工商行政管理局令第82号）
12. 1998年4月2日：《国家工商行政管理局关于有线电视台在提供电视节目服务中进行有奖竞猜是否构成不正当竞争行为的答复》 （工商公字［1998］第55号）
13. 1998年6月15日：国家发展计划委员会、国家建材局发布《关于制止低价倾销平板玻璃的不正当竞争行为的暂行规定》的通知（ 计价管［1998］1094号）
14. 1998年7月14日：国家工商行政管理局关于抽奖式有奖销售认定及国家工商行政管理局对《反不正当竞争法》具体应用解释权问题的答复（工商公字［1998］143号）
15. 1998年9月18日：国家计委、国家冶金局关于发布《关于制止低价倾销钢材的不正当竞争行为的暂行规定》的通知（计价格［1998］1777号）
16. 1999年4月5日：《国家工商行政管理局关于工商行政管理机关对保险公司不正当竞争行为管辖权问题的答复》（工商公字［1999］第80号）
17. 1999年4月5日：《国家工商行政管理局关于有奖促销中不正当竞争行为认定问题的答复》（工商公字［1999］第79号）
18. 1999年6月30日：《国家工商行政管理局关于中保财产保险有限公司宁夏分公司在玻璃碎险理赔中指定使用福耀玻璃是否构成不正当竞争行为问题的答复》（工商公字［1999］第176号）
19. 1999年7月27日：《国家工商行政管理局关于电信局对不从该局购买手机入网者多收入网费的行为是否构成不正当竞争行为问题的答复》（ 工商公字［1999］第190号）
20. 1999年10月26日：《国家工商行政管理局关于工商行政管理机关应当依照《反不正当竞争法》查处邮政企业强制他人接受其邮政储蓄服务的限制竞争行为的答复》（工商公字［1999］第276号）
21. 1999年10月26日：《国家工商行政管理局关于铁路运输部门限定用户接受其指定的经营者提供的铁路运输延伸服务是否构成限制竞争行为及行为主体认定问题的答复》（ 工商公字［1999］第278号）
22. 1999年11月29日：《国家工商行政管理局关于《反不正当竞争法》第二十三条滥收费用行为的构成及违法所得起算问题的答复》（工商公字［1999］第310号）
23. 1999年12月1日：《国家工商行政管理局关于《反不正当竞争法》第二十三条和第三十条“质次价高”、“滥收费用”及“违法所得”认定问题的答复》（工商公字［1999］第313号）
24. 2000年5月17日：《国家工商行政管理局对铁路运输部门强制为托运人提供保价运输服务是否排挤保险公司货物运输保险公平竞争问题的答复》（工商公字［2000］第96号）
25. 2000年6月25日：《国家工商行政管理局关于石油公司、石化公司实施限制竞争行为定性处理问题的答复》（工商公字［2000］第134号）
26. 2001年6月5日：《国家工商行政管理总局关于双鸭山矿务局供电总公司在从事转供电业务中实施限制竞争行为定性处理问题的答复》（工商公字［2001］第144号）
27. 2001年7月11日：《国家工商行政管理总局对火车站限制竞争行为行政处罚当事人认定问题的答复》（工商公字［2001］第179号）
28. 2001年9月5日：《国家工商行政管理总局关于非营利性医疗机构是否属于《反不正当竞争法》规范主体问题的答复》（工商法字［2001］第248号）
29. 2002年12月31日：《国家工商行政管理总局关于电力局在农网改造中实施限制竞争行为及被指定的经营者借此滥收费用问题的答复》（工商公字［2002］第287号）
30. 2003年6月11日：《中国保险监督管理委员会关于明确保险机构不正当竞争行为执法主体的复函》（保监函［2003］744号）
31. 2003年6月18日：《制止价格垄断行为暂行规定》（中华人民共和国国家发展和改革委员会令第３号）
32. 2003年6月18日：《国家工商行政管理总局关于对烟草公司依据卷烟零售协会文件实施限制竞争行为定性处理问题的答复》（工商公字［2003］第80号）
33. 2005年9月9日：《国家工商行政管理总局关于工商行政管理机关能否依法查处航空公司从事不正当竞争行为有关问题的答复》（工商公字［2005］第134号）
34. 2007年6月12日：《全国人大常委会法制工作委员会对《反不正当竞争法》和《价格法》有关规定如何适用问题的答复》（ 行复字［2007］6号）
35. 2007年10月17日：《国家工商行政管理总局关于对《反不正当竞争法》第五条第（四）项所列举的行为之外的虚假表示行为如何定性处理问题的答复》（工商公字［2007］220号）

Appendix 2: Official websites of China AML legislative, enforcement and regulatory authorities

NPC: http://www.npc.gov.cn/wxzl/gongbao/node_4508.htm

MOFCOM: http://fldj.mofcom.gov.cn/?566796080=822957196

NDRC: http://jjs.ndrc.gov.cn/default.htm

SAIC: http://www.saic.gov.cn/fldyfbzdjz/

See also

• Chinese law
• Law of the People's Republic of China
• 360 v. Tencent

References

1. Became invalid as of 23 March 1986.
2. Became invalid as of 6 October 2001.
3. Replaced The Provisional Rules on Expediting Economic Alliance of 1980 and became invalid as of 6 October 2001.
4. The list here is not an exhausted list of all legislative documents up to date. Other more detailed administrative legal documents are also listed Appendix 1 “Other Relevant Legal Documents”.
5. The “Legal Liabilities” listed here do not include the liabilities regarding the concentration of undertakings which is separately listed in the section of Concentration of Undertakings.
6. For instance, AML Articles 13, 14 and 15 vs. Articles 81(1), 82 and 81(3) of the EU Treaty.
7. Section 72, Case T-112/99 [2001] Métropole télévision (M6), Suez-Lyonnaise des eaux, France Télécom and Télévision française 1 SA (TF1) v Commission of the European Communities
8. Passed by the China Supreme Court on 30 January 2012, published on 3 May 2012 and implemented as of 1 June 2012.
9. Section 74, Case T-112/99 [2001].
10. It was renumbered as Article 7 in the finally promulgated and implemented SCJO.
11. See Paragraph (1) in Section 6.3 Tencent vs. Qihu 360 case below.
12. It was renumbered as Article 7 in the finally promulgated and implemented SCJO.
13. See more details in Section 7(ii) below.
14. Pages 38 and 39 of the Ruling.
15. The four major cases include (1) LED panel price fixing agreement case amongst Samsung, LG, Chimei, AU Optronic、Chunghwa Picture Tubes and Hannstar; (2) price monopoly case by Wuliangye and Maotai; (3) price monopoly case by Shanghai Gold Accessories Industry Association and several Gold Accessory Shops; and (4) “agreements to restricting minimum resale price agreements” case by milk powder suppliers including Biostime, Mead Johnson, Danone Dumex, Abbott, Friso and Fonterra; in which LED price fixing agreements existed prior to the AML implementation and the NDRC’s ruling was then based on the Price Law instead of AML. However, as it was defined at the beginning, Price Law is also an important component of the anti-monopoly law of China in broad sense.
16. While there had no questionable comment made towards the application of “per se rule” in the LED and Gold Accessories cases because both of which were horizontal agreements, some questions and comments had been made towards the milk powder and Wuliangye/Maotai vertical agreement cases that whether or not the “reason” or the “reasonable cause” must have been examined, on a case by case basis, for the effects of exclusion or restriction of competition before the decision was made.
17. In addition to Article 15, AML Articles 55 and 56 also provide extra exceptions where the AML will not apply.
18. It appears that both plaintiff and the Court recognized the lawful proprietary, exclusive or monopolistic nature of the intellectual property right according to the relevant laws, as such the difficulty, especially the burden of proof, in the “abuse of intellectual property right” litigation is significantly higher than the “abuse of dominant market position” litigation, the latter of which can be established as a good arguable case on the basis of the adequate information and data of the relevant market.
19. See more details in Section 4 above for analysis on the application of “rule of reason” in this case.
20. Page 38 of the Judgement.
21. Pages 40-61 of the Judgement.
22. Pages 39-40 of the Judgement.
23. The Anti Monopoly Expert Panel was formed on 20 December 2012 by the State Council Anti Monopoly Committee. The Panel engages totally 21 professional experts, in which one from each of Shanghai and Tianjin while the rest are from Beijing, whom are legal, economic and technology experts from Beijing University, People’s University of China, China Political Science and Law University, China Social Science Academy, as well as from various ministries and commissions. However, no official list of full members has been published so far. The judicial system for anti-monopoly civil cases in also illustrated for reference.
24. This is a list of personnel in 2008 when the Committee was set up, subsequently some of them have been replaced or substituted due to their job change or retirement such as Wang Yang as in-charge Vice Prime Minister replaced Wang Qi Shan as the Director General.
25. ditto.
26. It is intended to provide a full list of ancillary legal documents in addition to those provided in Section 3 above. Due to the dispersivity and disorganizing nature of the China administrative laws, regulation and other legal documents, however, it can not be confirmed that this list covers all other administrative laws, regulation and other relevant legal documents. This Appendix is for the time being in Chinese only.