Archive for the ‘China Watch’ Category
As you might have noticed, we took an unnanounced temporary break from bloggin’. First it was due to a particularly intense period of work (I might give more details about it in the future) and then to (my only…) week of Summer holidays during which I wanted to hear nothing about competition law [btw, I read these two very recommendable books (here and here), only to find out that the latter -a dystopian novel about tech companies- does refer to European Commission's antitrust investigations as part of the plot...].
In between this break Chillin’Competition surpassed 750,000 visits [I checked the stats and only in the past year we've had visits from 193 countries (exactly the same as the members of the UN)], which still today feels pretty surprising. We are however increasingly struggling to find the time to improve what we do here; at least in my case, this is proving a challenge (and it’ll be even more in the near future once the upcoming paternity reshuffles my priorities). This is to say that you should expect some significant changes in Chillin’Competition after the summer holidays, hopefully for good.We’ll explain this in more detail soon.
Nicolas -who will soon end his time at DG Comp- and myself discussed a bit about this yesterday when we met by surprise at a corridor of the College of Europe in Bruges; we were simultaneously lecturing in two contiguous rooms and hadn’t realized about it… By the way, I was lecturing to a group of very smart Chinese officials (pictured above) about EU Competition Procedure and Article 106 TFEU (the provision with the greatest unexploited potential in EU Competition Law) and very much enjoyed discussing with them (this in spite of -excellent- consecutive translation, which added a level of complexity to the conversation). In case anyone is interested, here are the two power points I used (although I’m afraid you might have trouble understanding much): EU Competition procedure (CoE-China) and Article 106 (CoE-China) (many thanks, by the way, to Carlos Bobillo and Ana Balcells for taking care of these. One day they’ll realize that the main advantage of spending a few years at a law firm is that you can get someone to do your PowerPoints ;) )
As reported earlier on this blog, Hong Kong recently joined the league of jurisdictions with a domestic competition regime.
On this occasion, CCH Wolter Kluwers organized a one day conference to discuss forthcoming challenges for the new law.
I was one of the happy many to be invited to the conference, together with a bunch of lawyers from Brussels, Beijing, Australia and the United States.
Now, our Hong Kong friends might be pondering how to apply their new law, they know how to throw a good event. Everything was perfect. Congrats’ in particular to Shirley Hon and Simon Bellamy for the superb organisation.
The level of the discussions was by all standards very high. You could tell the speakers had put time and energy in their presentations. Not the usual quick and dirty, taxi-drive preparation. I personally gave a talk entitled “New Challenges for XXIst Century Competition Authorities” where I identify 5 new enforcement challenges, and 4 new substantive ones. My ppt is available at the end of this post.
The after-conference evening was also a success. There was a cocktail reception, which was followed by rounds of free cocktails, courtersy of Kluwer (no kidding here). With a bunch of enthusiastic conference participants (including several speakers), we then moved to Lan Kwai Fung where we had a lot of fun. I then took a few days off, enjoyed the sun and did some trekking with an old friend who relocated there.
The bottom-line: it was a fantastic trip. And I must confess that since I came back, I have been looking once or twice if academic positions were available in the region…
(As you will recall from last week, with occassion of the Chinese New Year we are publishing a year-in-review trilogy by our friend and “China correspondent” Adrian Emch. This is part two of Adrian´s review of 2011. Enjoy!)
The investigation by the National Development and Reform Commission (NDRC) into the practices of China Telecom and China Unicom had a significant impact inChina. It was one of these cases that people outside the antitrust community actually notice.
The reasons for the high-profile nature of the case may be manifold. For one, most consumers in China will have been a customer of one of the two, in one way or another. Two, the fact that an NDRC official talked to the press while the investigation was ongoing and said that the fine could amount to 1 to 10% of the companies’ annual turnover might have contributed to drawing attention to the case. But, three, perhaps most significantly, the media’s focus on this case may stem from the fact that China Telecom and China Unicom are state-owned enterprises (SOEs), and very powerful ones at that. Therefore, it is possible that the main reason for their interest in the case is the surprise, or even disbelief, that someone like NDRC’s antitrust officials would dare take on the two SOEs.
Hence, perhaps the most fundamental underlying question in the China Telecom and China Unicom case is whether and to what extent the Anti-Monopoly Law (AML) applies to SOEs – in law and in practice. For the international audience, the answer to this question is important: if the AML were in practice not to apply to SOEs, then the targets of the agencies would be private Chinese companies and foreign companies. For the former, many of them are young companies, which generally do not enjoy much support by the State. So their market position inChina’s “transitional” economy may not be too prominent, as a general rule. Which would leave …foreign companies as enforcement targets.
The fear that the AML would be used as a weapon against foreign companies was there from the very beginning of its enforcement. So let’s take a good look to check whether or not this fear was justified.
[Note by Nicolas and Alfonso: Chillin'Competition is going global. From now on, we will have guest bloggers of reference in major jurisdictions or regions other than the EU and the US. They will report regularly on what’s hot in their jurisdictions. Their posts will appear under 2 new categories: China Watch and Latin America Watch (new country/region sections will be created in the future). There’s so much interesting stuff going on out there that it would be a shame to miss it.
A good friend, long-time reader of this blog and bright lawyer, Adrian Emch (Counsel at Hogan Lovell’s in Beijing) will be our correspondent for China (of course all the views expressed by Adrian here are strictly personal and not necessarily coincidental with those of his firm or clients). Now that you’ve been introduced, we leave you with him].
Welcome to the wondrous world of Chinese competition law! I am very honoured to join this blog and help it ‘go global’–to chill competition on a worldwide basis. As an avid reader of the blog from the beginning, I personally share many of Nicolas’ and Alfonso’s views, including the view that there is room for fresh ideas and even fun within the competition law world. So I am very glad to contribute to the debate on worldwide convergence (and divergence!), best (and worst) practices, etc. with blog posts aimed at enhancing cross-fertilization among Eurasian competition law cultures!
For this inaugural post, I have chosen at topic that falls within the heart of Nicolas’ and Alfonso’s obsessions expertise, namely exchanges of price-related data between competitors. So it is not only an ideal topic to blend in, but also a very timely one. Today marks the 10th anniversary of the one-off information exchange meeting between the five Dutch telecoms operators held by the European Court of Justice to have engaged in cartel-like (?) conduct in the infamous T-Mobile judgment. As insiders know, 13 June is considered the date of birth of information exchanges as a new and basically independent antitrust discipline…
More importantly, how to deal with information exchanges is a question that many antitrust regulators are still grappling with in many jurisdictions beyond the EU. With this background, on 6 May 2011, the National Development and Reform Commission (NDRC) –one of China’s three-plus competition authorities, with jurisdiction over price-fixing (among other things)– slapped a record antitrust-related fine (over €200,000) on Unilever. At first sight, the NDRC decision may seem to smack of old-fashioned industrial politics. But, at the same time, some might view it as cutting-edge antitrust enforcement. Read the rest of this entry »