Jones Day (JD Supra China)

China recently released new drafts of its Data Security Law and its Personal Information Protection Law for public comment; when finalized the two laws will impose significant obligations on how companies collect, process, and transfer data while operating in, or transacting with, companies or individuals in China. China's National People's Congress Standing Committee recently released a...

The Development: China's Ministry of Commerce ("MOFCOM") released Rules on Counteracting Unjustified Extra-Territorial Application of Foreign Laws and Other Measures ("Rules") on January 9, 2021. Effective immediately, the 16-article Rules are aimed at safeguarding China's national sovereignty, security, and development interests, and protecting the legitimate rights and interests of Chinese...

On October 17, 2020, the Standing Committee of the National People’s Congress in China promulgated the fourth amended Patent Law of the People’s Republic of China, which came into force in its original form in 1985, with subsequent amendments in 1992, 2000, and 2008. The amendment will come into effect on June 1, 2021. The amendment for the first time codifies certain notable changes for...

The Situation: China's legislature has recently eased the challenge of prosecuting trade secret misappropriation cases in that country. The Result: As recently amended, Chinese law now follows some case law developments in Chinese courts: by shifting to defendants the burden of disproving misappropriation after the plaintiff has established a prima facie case of access and substantial...

In August 2020, the Anti-Monopoly Bureau of China's State Administration for Market Regulation released four long-awaited sets of anti-monopoly guidelines addressing issues relating to leniency, commitments, the automobile industry, and intellectual property rights. The subjects of this White Paper, the Anti-Monopoly Guidelines on Intellectual Property Rights ("IPR Guidelines"), are intended to...

The Anti-Monopoly Bureau of China's State Administration for Market Regulation ("SAMR") released four sets of long-awaited anti-monopoly guidelines. This White Paper addresses the Guidelines on Application of Leniency Program in Horizontal Monopoly Agreement Cases and the Guidelines on Undertakings' Commitments in Anti-Monopoly Cases. The Leniency Guidelines provide more clarity about the...

The Anti-Monopoly Bureau ("AMB") of China's State Administration for Market Regulation ("SAMR") recently released four sets of long-awaited anti-monopoly guidelines, including the Anti-Monopoly Guidelines on the Automobile Sector ("Guidelines"). While the Guidelines are significant for companies in the automobile industry, companies in other industries should pay close attention to the Guidelines

Similar to the laws in the United States and Europe, Chinese law allows those accused of patent infringement to commence actions for declaring non-infringement of patents to clear away the uncertainties. A key precondition for commencing a patent non-infringement declaratory judgment action ("DJ Action") is the patentee having claimed patent infringement. Chinese law leaves the means of such a...

The Situation: The new PRC Foreign Investment Law ("FIL"), as well as its Implementing Regulations ("Implementing Regulations"), took effect on January 1, 2020. In addition to the FIL and the Implementing Regulations, the 2019 Special Administrative Measures for Foreign Investment (also known as the "Negative List") and the Catalogue of Encouraged Industries for Foreign Investment ("Encouraged...

The Situation: In the two years since China enacted the Cybersecurity Law, which granted authorities broad powers to monitor and investigate activities falling under its purview, authorities have increasingly penalized violators for not complying with the Law's data privacy provisions. The Result: Since the Cybersecurity Law came into effect in June 2017, numerous instances of zealous...

China's State Administration for Market Regulation ("SAMR") recently released three new antitrust regulations that consolidate the antimonopoly regulations of its predecessor antimonopoly enforcement agencies, but also introduce important changes. This Jones Day White Paper reviews the key reforms, which take effect September 1, 2019, and their implications for companies doing business in China....

In its first resale price maintenance ("RPM") ruling since the passage of its Anti-Monopoly Law, China's highest court held that Chinese antitrust enforcement agencies do not have to prove that RPM has an anticompetitive effect before issuing fines for RPM. RPM, also known as vertical price fixing, is an agreement between a manufacturer and a distributor to set the price at which a distributor...

The Background: Over the first decade of China's Antimonopoly Law ("AML"), there has been a divergence between the approaches adopted by the Chinese antimonopoly enforcement agencies ("AMEAs") and the Chinese courts toward resale price maintenance ("RPM"). The AMEAs treated RPM as automatically or "per se" illegal, while the courts used the "rule of reason" balancing test. The Situation: Two...

The Situation: The Negative List is a list of industries for which foreign investment in China is either prohibited, or subject to greater scrutiny and restrictions. The Development: Chinese authorities have issued a shortened Negative List, under which foreign ownership restrictions have been removed or relaxed in certain industries, including financial services, automotive, transportation,...

Ten years after the introduction of China's Anti-Monopoly Law, the functions and duties of the three agencies originally charged with enforcing the law's provisions are now unified under the direction of the newly formed State Administration for Market Regulation ("SAMR"). Consolidation of the enforcement activities of the three separate agencies is likely to have significant impact on the...

China recently established the State Administration for Market Regulation ("SAMR"), which combines the antitrust enforcement responsibilities of the previous Price Supervision and Antimonopoly Bureau of the National Development and Reform Commission ("NDRC"), the Antimonopoly Bureau of the Ministry of Commerce ("MOFCOM"), and the Antimonopoly and Anti-unfair Competition Bureau of the State...

Over the first decade of China's Antimonopoly Law, we have seen a divergence between the approaches adopted by the Chinese antimonopoly enforcement agencies and the Chinese courts towards agreements that restrain trade; what in China are called "monopoly agreements," especially vertical agreements. The key difference is whether proof of anticompetitive effect is a necessary element to find an...

The Hong Kong Stock Exchange recently published a Consultation Paper on a Listing Regime for Companies from Emerging and Innovative Sectors, and proposed to introduce a new chapter implementing the listing of pre-revenue/pre-profit biotech companies on the Main Board of the Exchange. The Consultation Paper clarifies uncertainties in the previous proposal (particularly on determining whether a...

The Situation: The high level of certainty of obtaining shareholders' approval for whitewash waivers could lead to potential abuse by parties looking to obtain or consolidate control through whitewash transactions in Hong Kong. The Development: The Securities and Futures Commission in Hong Kong proposes an increase in the voting approval threshold for whitewash waivers and the underlying...

The Situation: The Hong Kong Stock Exchange’s failure to recognize that investors are able to evaluate biotech companies in the pre-revenue stages, and its consequent refusal to list those companies for trading, is viewed by many in the modern investment environment as outmoded. The Development: With certain restrictions and safeguards, new chapters to the Main Board Listing Rules will allow...

In Short - The Situation: In early September, three local Chinese chemical manufacturers received penalty notices from China's National Development and Reform Commission ("NDRC") for attending an association conference, exchanging price information through social media thereafter, and colluding to fix the prices.

China's State Council recently issued a new notice ("New ODI Guidelines") as a follow-up to the overseas investment control policy that it announced in December 2016. The New ODI Guidelines provide further guidance regarding the regulation of overseas direct investment ("ODI") by Chinese businesses and clarifies how the Chinese government will implement these restrictions on ODI activities.

China’s Cybersecurity Law was issued on November 7, 2016, by the Standing Committee of the National People’s Congress, and it came into effect on June 1, 2017. The Cybersecurity Law marks the first comprehensive law in China specifically regulating cybersecurity. The Cybersecurity Law contains detailed requirements that covered entities must meet, and it imposes significant legal liabilities...

The Chinese Arbitration Association ("CAA") adopted the Chinese Arbitration Association International Arbitration Rules 2017 ("CAAI Rules") on July 1, 2017. The Rules—which can apply only to arbitrations seated outside of Taiwan—seek to introduce features to address procedural issues associated with having international arbitrations seated in Taiwan, as well as to streamline the process generally.

The Standing Committee of the National People's Congress ("SCNPC"), the legislative body of the People's Republic of China ("PRC" or "China"), released a first draft of the National Intelligence Law ("Draft") on May 16, 2017. The Draft was posted on the SCNPC website to solicit comments from the public until June 4, 2017. This is the first systematic legislation in China that explicitly...

China's new Cybersecurity Law ("new Law") is set to come into effect on June 1, 2017, and introduces sweeping provisions that may have a significant impact on companies doing business in and with China. To provide guidance on a controversial data localization requirement introduced in the new Law, the Cyberspace Administration of China released on April 11, 2017, draft Measures for Security...