,
Christian Riis-Madsen and
Nathan Bush
O'Melveny's Antitrust/Competition Practice would like to wish all of our friends and clients a Happy New Year.
In the newsletter below you will find our view on what to expect from the new European Commission in the New Year, a review of the Competition Commission of Singapore's decisions in 2009 and how this will influence enforcement in the year ahead, and a discussion of judicial enforcement under the Antimonopoly Law of the People's Republic of China.
We hope you will enjoy reading this newsletter. For questions or comments, you are of course welcome to contact us.
* * * * * *
WHAT TO EXPECT FROM THE NEW COMMISSION?
In the EU, the New Year will bring a new Commission and significant changes in senior positions at DG Competition. The confirmation hearings for the new Commission start next week (with the Competition Commissioner designate Joaquín Almunia's hearing on Tuesday 12 January 2010). The Parliament is scheduled to vote on the new Commission on 26 January which will enable the new Commission to be in place by 1 February 2010. At the same time, current Director-General Philip Lowe will be replaced by the Dutch senior competition official Alexander Italianer who comes from a position as the Deputy Secretary General of the Commission. Also, the position of Director of the Cartel Directorate will need to be filled, with the current Director leaving to head the Cabinet of the French Commissioner.
It is hard to predict what these changes will mean for the future of antitrust enforcement in the EU. In the near future, the changes are unlikely to lead to any noticeable departure from current practices. After all, the vast majority of case-handlers will remain the same and no major legislative changes appear to be on the horizon. Furthermore, the written replies of Commissioner designate Almunia to the Parliament appear to contain an endorsement of the current Commission's policies as opposed to a signal of any wide-spread reform. As the only major area of reform, the written comments specify that Almunia considers that the financial crisis has demonstrated a need for an overhaul of the State Aid rules. In addition, before introducing any legislation opening up for more private damage actions in the EU in competition cases, Almunia has said that he will "take soundings" and that he will be "bearing in mind the necessity of safeguards to prevent us from the kind of excessive litigation often experienced in the US".
All in all, Commissioner Kroes and Philip Lowe leave behind a DG Competition in good shape. The Commission as competition law enforcer is well-respected globally; it has tackled the largest cases in the world and generally has a very good track-record in Court in recent years. Commissioner Kroes faced a very tough hearing from the Parliament when she was originally nominated as it was feared that her former positions with private business would lead her to take a too friendly, too lenient stance vis-à-vis large corporations. She certainly showed those critics that they were wrong. In what we see as an endorsement of the current enforcement record, the in-coming commissioner has pledged to "maintain the strong leadership of EU competition policy world-wide" and has also indicated that he believes in the power of "open and competitive markets" supported by "enforcing the competition rules in key areas like energy, information technology and transport".
One big challenge lies ahead for Almunia and Italianer: reigning in the Cartel directorate. In his written comments, Almunia says that he considered the "Commission's institutional set-up and decision-making system for competition to be a strong one, with guarantees as regards effectiveness, fairness and due process". One should therefore not expect any major reform of the Commission's decision-making process (which in any event likely would require new changes to the Lisbon Treaty). However, we hope that Almunia or Italianer will realize that the one-sided pursuit of ever-higher fines has resulted in an unconstrained political support for the cartel directorate, which in turn feels invisible. The result is much like the Merger Task Force back in its heyday; that companies' rights and the interest in fair and objective proceedings have suffered. Not all infringements are hard-core price fixing cartels and instead of pushing every case to the boundary - and beyond - the Commission should make sure that it applies its procedures in a fair manner. Looking back at the problems faced when the Merger Task Force had unlimited political backing (and were referred to as the Ayatollah's of the Commission), it is clear that significant improvements can be made without fundamentally changing the institutional frame-work. Merger investigations today benefit from internal peer reviews and the high-profile abuse of dominance cases similar face a significant amount of internal scrutiny which clearly has an effect in those cases. However, most cartel cases do not appear to face this level of internal scrutiny and instead appear to be waved through the system.
The Commission has just published new draft Best Practice documents on how to conduct its investigations. The Commission launched the draft documents under the heading of "improved transparency and predictability of proceedings". However, this improved transparency refers not to any major changes in the way the Commission will conduct is proceedings but from the fact that the documents explain in more detail the Commission's current practices. While Best Practices are of course welcomed, the current draft does little, if anything, to deal with the issues defendants currently face across a large number of cartel investigations. The Parliament has already indicated that it will ask questions relating to the high fines imposed by the Commission and issues of due process. So maybe, like Kroes, Almunia will face a tough hearing.
* * * * * *
IS SOUTHEAST ASIA'S YOUNG COMPETITION REGIME READY TO CLAIM ITS PLACE ON THE GLOBAL ANTITRUST STAGE? A REVIEW OF THE COMPETITION COMMISSION OF SINGAPORE'S DECISIONS IN 2009
Nathan Bush, Siobhan Kahmann
Until 2009, relatively few decisions had been made by the Competition Commission of Singapore ("CCS"). Its only cartel infringement decision1 back in January 2008 involved a number of pest control firms participating in a blatant bid-rigging arrangement. The resultant fine amounted to a miniscule sum, which was clearly not intended to act as a deterrent towards any would-be cartelists.2 Additionally, since Singapore's merger control regime is voluntary in nature, only 15 transactions have been notified since merger control took effect in July 2007, with no prohibition decision issued to-date.
Nevertheless, the CCS appears to have taken a number of steps over the last year to assist it in gaining a reputation as an authority to be reckoned with on the global antitrust stage. Not only did the CCS impose a fine of S$1.69 million (US$1.21 million) on coach operators and their trade association for price-fixing, but it has also recently proposed an infringement decision against Singapore's largest ticketing company for allegedly abusing its dominant position in the ticketing market. In addition, the CCS has commenced a Phase 2 review for the second time in Singapore's merger control history.
This short update will give a brief introduction to Singapore's young competition regime, and look at how these recent developments mark a clear turning point for the CCS.
Singapore's Competition Regime
The Competition Act 2004 ("the Act") was introduced pursuant to commitments made under the FTA entered into between Singapore and the United States on 6 May 2003. The Act was passed in October 2004 and implemented in three phases, completing with merger control on 1 July 2007.3 While the Act is largely modeled on the UK Competition Act 1998, it contains a number of notable differences, and in practice the CCS looks to international best practices in general.4 The objective of the Act is to promote the efficient functioning of Singapore's markets and enhance the competitiveness of the economy.
Developments In Merger Control (Section 54 Of The Act)
While merger control is considered to be the most active area of Singapore's competition regime so far, 13 of the cases filed have been cleared at Phase 1, with two progressing to a Phase 2 review.5 The first case to reach Phase 2 was the international Thomson Reuters merger in 2007/86 (which the CCS approved some months after leading antitrust authorities in Europe and the US had already done so). Currently, a joint venture between Greif International Holding B.V. and GEP Asia Holdings Pte. Ltd. is also subject to the Phase 2 review process.7
Anti-Competitive Agreements (The Section 34 Prohibition)
In November 2009, the CCS found that 16 coach operators and their trade association, the Express Bus Agencies Association ("EBAA"), had engaged in the price-fixing of coach tickets,8 infringing the Section 34 Prohibition.9 The CCS thereby imposed its highest fine so far, amounting to S$1.69 million (US$1.21 million), with a number of individual penalties reaching over S$300,000 (US$214,886).
The 206 page decision illustrates that the CCS' investigation revealed the coach operators, together with the EBAA, had agreed to fix the prices of coach tickets for travelling between Singapore and destinations in Malaysia between 2006 and 2008. Through meetings arranged regularly under the auspices of EBAA, the coach operators agreed to fix the coach prices by establishing:
- Minimum Selling Prices ("MSP") of the coach tickets sold; and
- Fuel & Insurance Charges ("FIC") imposed across the board to mark-up ticket prices.
In relation to MSPs, the decision provides that an agreement was reached on 1 June 2005. The introduction of the MSP was premised on an intention to prevent any price war and minimise any slashing of coach ticket prices amongst competitors. As a result, the coach operators adjusted ticket prices to either at or above the MSP, resulting in higher ticket prices. This agreement continued after 1 January 2006, when the Competition Act came into effect in Singapore.
Having established a price floor via MSPs, subsequent price increases were also undertaken via the mechanism of the FIC, which was started in 2005 and revised upwards on various occasions after implementation. The CCS observes that mark-ups by EBAA members on the FIC were at least 300 per cent. Such FIC increases were accompanied by "authorization letters" issued by the EBAA, which gave the impression that they were fully justified to the public.
Nevertheless, despite the CCS' observation that during the infringement period it is estimated that the coach operators pocketed over S$3.65 million (US$2.61 million) from the sale of the FIC alone, the penalty ultimately imposed appears to be relatively small in comparison.
Abuse Of Dominance (The Section 47 Prohibition)
On the 15 December 2009, the CCS issued a proposed infringement decision against SISTIC.com Pte Ltd ("Sistic") in relation to abuse of its dominant position in the ticketing service market via various exclusive agreements. While not final at this stage, such a decision is the first of its kind in relation to the Section 47 Prohibition,10 which is indicative of the experience the CCS is gaining and its growth in confidence.
Sistic is the largest ticketing service and solution provider in Singapore, controlling more than 90 per cent of the ticketing market. Ticketing service providers act as middlemen between two groups of customers: the event organisers and the ticket buyers, by providing them with a platform to buy and sell tickets.
The CCS has found that Sistic has entered into exclusivity agreements with event organisers such as The Esplanade Co. Ltd and the Singapore Sports Council, which contain explicit restrictions requiring all events held at the Esplanade (Singapore's famous "Theatres on the Bay") and the Singapore Indoor Stadium respectively, to use Sistic as the sole ticketing service provider. Furthermore, when such key venues are required to use Sistic by virtue of these agreements, third-party event organisers who wish to hold their events at these venues also have no choice but to sell tickets through Sistic.
The CCS has found 17 other agreements to contain explicit restrictions requiring the event organisers concerned to use Sistic as their sole ticketing service provider for all events. The CCS has also noted that Sistic raised its booking fees against ticket buyers by 50 per cent to S$3 (US$2.14) per ticket in January 2008.
To-date, it is understood that Sistic has confirmed receipt of the proposed infringement decision and has until mid-February to respond in defence. If ultimately found liable, the company faces fines of up to 10 per cent of its turnover for each year of the alleged infringement for a maximum of three years. Such a penalty could further bolster the CCS' recognition on a global scale, of a young national competition authority which does not wish to be underestimated.
* * * * * *
JUDICIAL ENFORCEMENT OF THE AML ...
Nathan Bush
Chinese emerging competition policy under the Antimonopoly Law of the People's Republic of China ("AML"), like other areas of Chinese law, emphasizes administrative enforcement over judicial enforcement.11 However, the AML does also permit judicial enforcement by People's Courts through private actions for damages. Article 50 of the AML provides that "undertakings that cause loss to others as a result of their Monopolistic Conduct shall be liable for civil liabilities in accordance with the laws." People's Courts across China have reportedly received numerous complaints under Article 50. With the release in late 2009 of the first judicial decisions under Article 50 of the AML, Chinese courts have cautiously assumed a greater role in the evolution of Chinese antitrust law.
China's judicial leaders appear to appreciate the complexity of competition issues and the risks of inconsistent or misguided enforcement. The Supreme People's Court (SPC) issued a notice on July 31, 2008 exhorting People's Courts at all levels to study the new AML and stressing the complicated blend of legal and economic issues in competition cases.12 That notice assigned actions involving claims under the AML to intellectual property tribunals in the view that AML cases are generally closely related to intellectual property rights, and cases under the Anti-Unfair Competition Law had historically been assigned to the same courts responsible for intellectual property matters.13 The SPC has not, however, determined which level of court should hear AML cases. The chief judge of the SPC and several scholars have suggested that jurisdiction over AML cases should initially lie in the Intermediate People's Courts.14 The Beijing High People's Court has issued regulations placing initial jurisdiction over AML actions in the Beijing Intermediate People's Court.15 In December 2008, the Shanghai Second Intermediate People's Court has reportedly established China's first Anti-Monopoly Special Collegiate Bench. The Anti-Monopoly Special Collegiate Bench is unique in that is designed to hear both civil cases under Article 50 and judicial challenges to the enforcement decisions of administrative agencies under the AML.16 Although the SPC is expected to issue "judicial interpretations" of the AML addressing standing, measures of damages, and similar issues, such judicial interpretations have not yet been released.
Sursen v. Shanda
The first substantial judicial decision under the AML involved a dispute between plaintiff Beijing Sursen Electronic Technology Co., Ltd. ("Sursen") and defendants Shanda Interactive Entertainment Limited ("Shanda") and Shanghai Xuanting Entertainment Information Technology Co., Ltd. ("Xuanting").17 Sursen contended that Shanda, a leading Chinese operator of on-line games and publisher of other on-line entertainment material, had abused its dominance in the "on-line literature" market by causing two authors to cease writing material for publication on the plaintiff's website. The material in question was written as a sequel to an on-line novel previously published by other authors on the defendant's website. On October 23, 2009, the Shanghai First Intermediate People's Court dismissed Sursen's claim. The court ruled that the plaintiff had failed to establish that Shanda possessed a dominant position in the market for online literature, noting in part that the plaintiff proclaimed itself to be the world's largest online book website. Foreign commentators noted that the court did not address the more controversial question of whether Shanda's conduct might in any event be covered by Article 55 of the AML, which provides that the AML shall "not apply" to the "exercise of intellectual property rights pursuant to the stipulations in laws and administrative regulations relating to intellectual property" but "shall apply to actions taken . . . to eliminate or restrict competition by abusing intellectual property rights."
Zhou v. China Mobile
Also on October 23, 2009, the Beijing Second Intermediate People's Court announced the settlement of another abuse of dominance complaint filed by a Chinese lawyer, Zhou Ze, against China Mobile Group Corporation ("China Mobile") and its subsidiary China Mobile Group Beijing Co., Ltd. ("China Mobile Beijing") before the Beijing Dongcheng District People's Court in March 2009.18 In China, mobile phone service is controlled by a duopoly of two state-owned companies, China Mobile and China Unicom. Zhou complained that the defendants abused their dominant market position by imposing unreasonable trading conditions and applying differential treatment in violation of Articles 17(5) and 17(6) of the AML. Zhou alleged that China Mobile possessed a 70% market share in China's mobile phone service market, exercising joint dominance with China Unicom. Zhou complained that China Mobile had abused its dominance by charging him a "monthly rental fee" of RMB 50 as part of the "Go-Tone" plan, even though he owned his own mobile phone.19 Zhou also alleged that China Mobile Beijing charged "Go-Tone" users a monthly fee of RMB 50 while charging users of the service brands of "Easy own" and "M-zone" a much lower monthly fee or no monthly fee at all. Zhou challenged these practices as price discrimination in violation of the AML and the Price Law.
According to Zhou, the Beijing Dongcheng District People's Court accepted the case on March 30, 2009 and conducted a hearing on May 7, 2009. On June 5, 2009, Beijing Dongcheng District People's Court informed the plaintiff that the case had been transferred to Beijing Second Intermediate People's Court, the proper court of competent jurisdiction.20 The Beijing Second Intermediate People's Court accepted the case on July 30, 2009, and heard arguments on September 7, 2009 and October 19, 2009.
Under Chinese judicial procedure, courts routinely seek to mediate disputes and recommend settlements before proceeding to judgment.21 In this case, both parties accepted a settlement through which China Mobile agreed to permit Zhou to switch to an alternative mobile phone service plan without a monthly fee and to make a one-time payment of RMB 1,000 characterized as a "premium" to Zhou. Accordingly, this highly-publicized litigation did not result in any formal judicial decision entailing the interpretation or application of the AML.
Renren v. Baidu
The most detailed judicial ruling under Article 50 of the AML emerged on December 18, 2009, when the first Intermediate People's Court of Beijing dismissed claims that Baidu, a leading Chinese language search engine, had abused its dominant market position in violation of the AML.22
The plaintiff, Tangshan Renren Information Service Co. Ltd. ("Renren"), provides information of pharmaceuticals and other medical issues through its website qmyyw.com. Renren's allegations focused on Baidu's "bid ranking" practices. Baidu enters "bid ranking agreements" with website operators through which website operators "bid" for keywords. When an internet user searches for one of the keywords through the search engine, the companies which have bid on the ranking of those keywords will be listed among the top results. The bidding company is charged whenever an internet user clicks its link and enters the web page of the ranked company. To promote traffic to its website, Renren entered a "bid ranking agreement" with Baidu for the period from March 2008 to September 2008. In May 2008, Renren began lowering its bids. According to Renren, it subsequently determined that the number of its pages which could be found through Baidu (regardless of bidding) dropped substantially.23 Renren alleged that Baidu had blocked its webpages in response to Renren's reduced participation in bid-ranking, noting that it could find 6690 pages of its website through Google but find only four of its website pages through Baidu.
In October 2008, Renren filed an administrative complaint with the SAIC alleging that Baidu had abused its dominant position.24,25] On December 25, 2008, Renren filed a complaint with the First Intermediate People's Court of Beijing. Renren alleged that Baidu's conduct constituted an abuse of dominance, and sought compensation of 1.106 million RMB and the unblocking of its website pages.
The court formally accepted the complaint on January 6, 2009.26 On April 22, 2009, the court conducted a hearing involving testimony from technical experts from both parties.27 On December 18, 2009, the court announced the judgment.
First, the court agreed with the plaintiff that the relevant market was the market for "that the "search engine services in China," rejecting Baidu's claim that services provided to consumers for free could not be considered a "market." Second, the court ruled that the plaintiff had failed to prove that Baidu was dominant in this mark. Although the plaintiff had submitted articles from business periodicals estimating Baidu's market share between 65% and 70%, the court considered such evidence insufficient to "to assure the court that the market share is determined based on scientific and objective analysis" because the underlying data and methodology was not provided. Third, the court accepted Baidu's argument that any reduction in the ranking of Renren's pages was pursuant to Baidu's published policy of downranking websites affected by "hyperlink cheating," a practice whereby website operators embed hidden or irrelevant contents in their pages to manipulate page rankings. Baidu submitted notarized reports indicating that Renren's pages contained many "junk hyperlinks." Accordingly, the court concluded that such measures would be "justified" under Chapter III of the AML, and hence should not be considered an "abuse of dominance." Accordingly, the court dismissed all charges against Baidu.
These decisions represent the first steps in Chinese antitrust jurisprudence. Although China's quasi-civil system does not treat precedents as binding, judicial rulings in high-profile cases often reflect informal consultation among courts at different levels and careful consideration of government policies. These rulings may signal the judiciary's wariness of inviting frivolous abuse of dominance claims or undermining critical industrial policies or economic reforms with a liberal approach to abuse of dominance claims. Decisions on more provocative issues--ranging from complaints of abusive IP licensing practices by allegedly dominant foreign firms or challenges to alleged cartels among former or current SOE's--lie ahead, and it remains to be seen whether the SPC will confront novel issues with a sweeping judicial interpretation or leave these questions to the lower courts. In any event, the Peoples' Courts are now active players in the development of antitrust with Chinese characteristics.
* * * * * *
EU AND ASIA ANTITRUST ALERTS DISTRIBUTED DURING THE 4th QUARTER OF 2009:
MOFCOM Clarifies Chinese Merger Review
Procedures (December 3, 2009)
Nathan Bush, Fay Zhou, Bo Yue
The Lisbon Treaty - What Really Matters (In Under Three
Minutes) (December 2, 2009)
Christian Riis-Madsen, Siobhan Kahmann
Antitrust Risk: Three Resale Price Maintenance Cases in
Germany In Six Months (October 16, 2009)
Christian Riis-Madsen, Jochen Anweiler
* * * * * *
Footnotes
1. Collusive Tendering (Bid-rigging) for Termite Treatment/Control Services by Certain Pest-Control Operators in Singapore, CCS/600/008/06 dated 9 January 2008.
2. The penalty amounted to S$262,759.66 (US$ 188,211). While the CCS found the total Singapore business turnover of the parties amounted to S$33.7 million (US$ 24.1 million), the Singapore business turnover of the parties attributable to the particular pest control treatment involved amounted to S$2.5 million (US$ 1.79 million). In fixing the appropriate amount of financial penalty, the CCS stated that it also took into account the co-operation rendered by the companies during the investigations.
3. In the first phase (commencing 1 January 2005) the CCS provisions came into force. This was followed by the provisions on anti-competitive agreements, abuse of dominance and the CCS' enforcement powers (on 1 January 2006). Finally, the third phase (1 July 2007) introduced the country's merger control regime. The CCS has also published a series of detailed Guidelines to assist market players in understanding the application and procedure of the Act (although the Guidelines do not represent a full or binding statement of the law).
4. Numerous references can be found in CCS decisions which cite European and US competition authority decisions and court rulings.
5. While not indicative of serious competition concerns, progressing to a Phase 2 review means that on the basis of all information before it, the CCS is unable to form the conclusion during the Phase 1 review that the merger situation does not raise competition concerns under the Section 54 Prohibition.
6. Merger between The Thomson Corporation and Reuters Group PLC, 23 May 2008, Case number: CCS 400/007/07.
7. Greif International Holding B.V. and GEP Asia Holdings Pte. Ltd., Reference 400/003/09.
8. Price Fixing in Bus Services from Singapore to Malaysia and Southern Thailand, 03 November 2009, Case number: CCS 500/003/08. This infringement decision followed CCS investigations which commenced in June 2008, and a proposed infringement decision issued on 16 June 2009.
9. Section 34 of the Act prohibits any agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within Singapore.
10. Section 47 of the Act prohibits a dominant firm from engaging in anti-competitive business practices that exclude competitors from competing in any market, resulting in harmful effects in Singapore.
11. See Zhonghua Renmin Gongheguo Fanlongduan Fa [Antimonopoly Law of the People's Republic of China], (promulgated by the Standing Committee of the National People's Congress on Aug. 30, 2007 and effective on Aug. 1, 2008), available at http://www.npc.gov.cn/zgrdw/common/zw.jsp?label=WXZLK&id=371229&pdmc=11006 (visited Oct. 7, 2007). An unofficial English translation is available as an appendix to Nathan Bush, The PRC Antimonopoly Law: Unanswered Questions and Challenges Ahead, Antitrust Source, Oct. 2007, http://www.abanet.org/antitrust/at-source/07/10/Oct07-Bush10-18f.pdf. References and quotations herein are based on this English translation.
12. See Zuigao Renmin Fayuan Tongzhi Yao Qieshi Yifa Shenlihao Gelei Fanlongduan Anjian [Notice of Supreme People's Court on Hearing Antimonopoly Cases According to Law], July 31, 2008, available at http://www.chinacourt.org/html/article/200807/31/314776.shtml (visited November 6, 2009); Zuigao Renmin Fayuan Minshi Anjian Anyou Guiding [Supreme People's Court Regulations on the Cause of Civil Action] was issued on March 3, 2008, available at http://www.2008red.com/member_pic_538/files/xnhbs/html/article_723_1.shtml (visited November 6, 2009).
13. See Gaofa Zhichanting Fuzeren Kong Xiangjun Tan Zhongguo Zhishi Chanquan Sifa Baohu Xianzhuang [Chief of Intellectual Tribunal of the Supreme People's Court Kong Xiangjun Talks About Current Status of China's Intellectual Property Rights Protection], March 9, 2009, available at http://www.court.gov.cn/html/article/200903/09/632.shtml (visited November 18, 2009).
14. See Zuigao Renmin Fayuan Xingzhengting Fuzeren Tan Fanlongduan Fa Shiyong Wenti [Chief of Administrative Tribunal of the Supreme People's Court Talks about Issues Related to Application of Anti-Monopoly Law], November 3, 2008, available at http://www.legaldaily.com.cn/2008fjdt/2008-11/03/content_973516.htm (visited November 18, 2009); Also See Fanlongduan Minshi Guansi Mianlin Zhongduo Shuobuqing Zhuanjia Xiance [Anti-Monopoly Civil Actions Facing Many Unclear Issues Experts Propose Ideas], October 28, 2008, available at http://www.shanghang.gov.cn/dzsw/qysw/flfw/qyal/200907/t20090707_20265.htm (visited November 18, 2009).
15. See Article 2.2.3 and 4.1 of Guanyu Beijingshi Geji Renmin Fayuan Shouli Diyishen Zhishi Chanquan Minshi Jiufen Anjian Jibie Guanxia De Guiding [Regulations on the Hierarchical Jurisdiction of the People's Courts of Beijing at All Levels in Cases of the First Instance of Civil Disputes over Intellectual Property Rights],issued by Beijing High People's Court on June 3, 2008 and effective on the same date, available at http://bjgy.chinacourt.org/public/detail.php?id=34321 (visited November 16, 2009).
16. See Xitan Fanlongduan Zhuanxiang Heyiting Sheli Zhi Youlai [Discuss in Details the Origin of the Establishment of the Anti-Monopoly Special Collegiate Bench], available at http://www.chinaipmagazine.com/journal-show.asp?id=375 (visited December 16, 2009).
17. See Quanguo Shouli Wangluo Yunying Longduan An Yishen Xuanpan Shengda Shengsu [First Instance of China's First Anti-Monopoly Case on Network Operation Determined, Shanda Won], October 26, 2009, available at http://www.ipr.gov.cn/bzpx/iprzs/jjzn/zzq/gajx/562068.shtml (visited November 16, 2009); Also see Zhongguo Shouli Fanlongduan Wangluo An Yishen Xuanpan [First Instance of China's First Network Anti-Monopoly Case Determined], October 23, 2009, available at http://www.caijing.com.cn/templates/inc/webcontent.jsp?id=110291885&time=2009-10-23&cl=100&page=all (visited November 16, 2009).
18. See "Zhong Yidong Bei Su Longduan An Hejie Jiangli Yuangao Yiqian Yuan" [Anti-Monopoly Case Against China Mobile Settled, Plaintiff Got One Thousand RMB as Premium], October 27, 2009, available at http://news.xinhuanet.com/tech/2009-10/27/content_12336944_1.htm (visited November 17, 2009); The plaintiff has disclosed a summary of the case and the court claim he submitted on his blog, available at http://zhouze.blog.sohu.com/134885568.html (visited November 17, 2009).
19. "Go-Tone" is high-end service brand of China Mobile that can support international roaming service. China Mobile also has low-end brands such as "Easy own" and "M-zone". Generally it has been difficult or cumbersome to switch to other brands of a mobile phone service provider while keeping the same phone number in some regions of China, e.g. See Beijing Yidong Xiehao Huan Taocan Qidong [China Mobile Launches Services Permitting Plan Changes with the Same Phone Number], March 17, 2009, available at http://news.china-b.com/itdt/20090317/977846_1.html (visited November 16, 2009); Xiehao Huan Taocan Xiaofeizhe Reng Bu Ziyou [Changing Plans with the Same Phone Number Consumers's Hands Are Still Tied], March 20, 2009, available at http://news.cnfol.com/090320/101,1587,5620516,00.shtml (visited November 16, 2009).
20. See Article 2.2.3 and 4.1 of Guanyu Beijingshi Geji Renmin Fayuan Shouli Diyishen Zhishi Chanquan Minshi Jiufen Anjian Jibie Guanxia De Guiding [Regulations on the Hierarchical Jurisdiction of the People's Courts of Beijing at All Levels in Cases of the First Instance of Civil Disputes over Intellectual Property Rights],issued by Beijing High People's Court on June 3, 2008 and effective on the same date, available at http://bjgy.chinacourt.org/public/detail.php?id=34321 (visited November 16, 2009).
21. See Article 9 of Zhonghua Renmin Gongheguo Minshi Susong Fa (2007) [Civil Procedure Law of People's Republic of China (2007)], amendment promulgated by the National People's Congress on October 28, 2007 and effective on the same date, available at http://www.chinacourt.org/flwk/show.php?file_id=122225 (visited November 18, 2009).
22. See corporate introduction of Baidu, available at http://home.baidu.com/about/about.html (visited December 21, 2009).
23. See Baidu Zaoyu Zhongguo Wangluo Fanlongduan Diaocha Diyi An [Baidu Facing China's First Internet Anti-Monopoly Case], Legaldaily.com.cn, available at http://www.sdrdlf.gov.cn/html/ggtz/zyxx/1554.html (visited December 21, 2009).
24. See Baidu Zaoyu Guonei Fanlongduan Diaocha, Shenqingren Jianyi Fakuan 1.7 Yi Yuan [Baidu Facing Domestic Anti-Monopoly Investigation, the Applicant Requested a Fine of 170 Million Yuan], Chinanews.com, Nov. 10, 2008, available at http://www.chinanews.com.cn/it/hlwxw/news/2008/11-10/1442944.shtml (visited December 21, 2009).
25. See Wangluo Fanlongduan Diyi An: Fanlongduan Diaocha Shenqing Shu [Petition for Anti-Monopoly Investigation for the First Internet Anti-Monopoly Case] disclosed by the attorney of the plaintiff, available at http://www.bdlawoffice.com/ShowArticle.asp?ArticleID=3223 (visited December 21, 2009).
26. See 12 Yue 18 Ri 9 Shi, Zhibo Yizhongyuan Xuanpan "Fanlongduan Diyi An" [Live Broadcast of the First Intermediate People's Court Announcing the First Internet Anti-Monopoly Case at 9 AM on December 18] (the judgment), Chinacourt.org, available at http://www.chinacourt.org/zhibo/zhibo.php?zhibo_id=1865 (visited December 21, 2009).
27. See Baidu Beisu Longduan Shichang "Fanlongduan Diyi An" Jinri Kaiting [Baidu Sued for Monopolizing Market Hearing for "the First Internet Anti-Monopoly Case" Opened Today], press release by the First Intermediate People's Court of Beijing on April 22, 2009, available at http://bj1zy.chinacourt.org/public/detail.php?id=612 (visited December 21, 2009).
O'Melveny & Myers LLP routinely provides advice to clients on complex transactions in which these issues may arise, including finance, mergers and acquisitions, and licensing arrangements. If you have any questions about the operation of the applicable statutory provisions or the case law interpreting these provisions, please contact any of the attorneys listed on this alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.