PDF《实务问题》

Resale Price M aintenance in China: One Country, Tw o Systems Resale Price M aintenance in China: One Country, Tw o Systems 实务问题 COMPANY LAW ( COMPANY LAW ) , ANTI-MONOPOLY &

COMPETITION ( ANTI-MONOPOLY &

COMPETITION ) 发文日期 2018-06-19 作者 Michael R.

Murphy, Yujing Shu, Jack S. Brodsky Email michael.r.murphy@klgates.com;

yujing.shu@klgates.com;

jack.brodsky@klgates.com 作者来源 K&

L Gates LLP 所属分类 Miscellaneous ( Company Law->

Miscellaneous ) ,Anti - Monopoly Law ( Market Competition Law->

Anti - Monopoly Law ) 行业分类 Government Services &

Public Administration,General [摘要] As a result, product manufacturers doing business in China must recognize China'

s contradictory approach to RPM when determining what, if any, RPM programs to adopt in China. 正文内容: 正文内容: At first blush, Article

14 of the2007 Anti-Monopoly Law of the People'

s Republic of China ( AML ) appears straightforward - resale price maintenance ( RPM ) is strictly prohibited in China.[1] Not so fast. In China, the legality of RPM depends on the plaintiff. While China'

s RPM enforcement agency, the National Development and Reform Commission ( NDRC ), utilizes a per se illegal -like approach in public enforcement of RPM, courts in China have established a more moderate rule of reason -like approach for RPM cases brought by private plaintiffs. The two conflicting approaches mirror the different RPM perspectives adopted in the United States ( rule of reason approach) and the European Union ( per se approach). Graced with an opportunity to unify the two standards in2017, the Hainan High People'

s Court unfortunately solidified the divergence in Yutai v. Hainan Provincial Price Bureau.[2] 1/6 As a result, product manufacturers doing business in China must recognize China'

s contradictory approach to RPM when determining what, if any, RPM programs to adopt in China. Public (NDRC) Enforcement Public (NDRC) Enforcement The NDRC is the Chinese antitrust agency primarily responsible for public enforcement of RPM policies. Although the AML became law in China in2007, the NDRC'

s interest in RPM violations has heightened in the last five years. Since the NDRC ramped up enforcement of RPM, the NDRC'

s approach to RPM has become clear and is now recognized as the prohibited in principle, and exempted individually or prohibition + exemption approach. The prohibition + exemption approach mirrors the per se rule utilized by the European Union.[3] Like the European Union'

s per se rule, the NDRC does not assess or have to prove the anti-competitive effect of an alleged RPM policy. The NDRC may simply deem the existence of an RPM arrangement a violation of the AML as a monopoly agreement. As the second half of the name suggests, the NDRC does recognize exemptions to its per se prohibition to RPM. Article

15 of the AML allows a company utilizing RPM to rebut the presumption of illegality if it can demonstrate certain rationales underlying its policy. The recognized exemptions include, but are not limited to: improving technologies, researching and developing new products ;

upgrading product quality, reducing cost, improving efficiency ;

and achieving public interests such as conserving energy [and] protecting the environment. [4] However, while Article

15 of the AML provides for such exemptions to Article 14'

s restriction of RPM, the NDRC has not once recognized a successful exemption to date.[5] If the investigated party cannot demonstrate an exemption, then the RPM policy is prohibited under the AML. Companies employing RPM must be wary of public enforcement in China. However, while the NDRC has taken a hard line with regard to RPM enforcement, its investigations thus far have focused on companies with high market share. Private Enforcement Private Enforcement Despite the NDRC'