By Michael Han & David Boyle
Over the past number of years China’s antitrust regime has been gaining prominence on the international stage. China’s merger control law is now well established and has become a real consideration for dealmakers and their lawyers around the world. However, in 2015, China’s antitrust enforcement in the non-mergers area came to the fore with some notable decisions and investigations. The National Development and Reform Commission’s (the “NDRC”) record breaking fines imposed on Qualcomm for abusing its dominant market position in the licensing of Standard Essential Patents (“SEPs”) and the recent fines imposed on a number of international cargo shipping carriers for cartel activity show that competition law compliance is now a real consideration for international companies doing business in China.
In 2015, China’s antitrust agencies also made strides in introducing more specific antitrust rules and guidelines to provide clarity on how the agencies will enforce China’s Anti-Monopoly law (the “AML”). For example, the State Administration for Industry and Commerce (the “SAIC”) promulgated the SAIC IP Antitrust Rules, with important implications for licensing arrangements, FRAND-encumbered IPRs, patent pools and the like. In addition, further guidelines are expected in the automobile sector, as well as guidelines on the calculation of fines and new leniency rules.
This article provides a summary of the key legislative, enforcement and litigation developments in 2015 in the non-merger antitrust enforcement area and the likely consequences these changes will have for companies doing business in China.