pwc anti - trust service · anti-trust rvice 7 anti - trust investigation our services assist our...

PwC Anti - trust Service

August 2015

www.pwccn.com

Anti-trust Service 1

Table of Contents

1、Anti - trust Introduction 2、Our Service Offerings 3、Our Credentials - Existing Projects and Relevant Experience

02 04 10

2 PwC

Regulated Conducts

Horizontal Monopoly Agreements

E.g.: price fixing, market division, output/sales restriction, boycott

Vertical Monopoly Agreements

E.g.: resale price maintenance (RPM)

Abuse of Market Dominance

E.g.: excessive pricing, predatory pricing, tying/bundling, refusal to deal, exclusive dealing, discrimination

Merger Review

Constitute “concentration” under Anti-monopoly Law (AML)+ reach the filing threshold

MOFCOM’sAnti-monopoly Bureau

Price Related

NDRC’sPrice

Supervision & Inspection

and Anti-

monopoly Bureau

Non-price

Related

SAIC’sAnti-

monopoly and

Anti-unfair Competition Enforcement

Bureau

1、Anti - trust Introduction

4 PwC

2、Our Service Offerings

Anti - Trust Service Offerings

Our service offering

Anti-trust Investigation

Merger Control Filings and Monitoring

General Anti-trust

Counselling

Anti-trust Compliance

Program

6 PwC

Merger Control Filings and Monitoring - Filing Party

Merger Control Filings and Monitoring - Relevant Third Party

Complaint Submission Dealing with Inquiries by MOFCOM

• Represent relevant third parties in submitting complaints to MOFCOM with regard to those failing to submit merger control filings under AML or those failing to fulfil obligations in accordance with MOFCOM’s decision

• Represent relevant third parties in submitting opinions or suggestions regarding the proposed concentrations

• Advise relevant third parties on properly dealing with inquiries made by MOFCOM about proposed concentrations or remedies

Pre-notification Services Notification Services Remedies-related Services

Notification Assessment

• Assess whether a particular transaction requires merger control filing in China

Pre-Notification Preparation

• Advise on the PRC merger control regulatory regime and filing process

Competition Analysis

• Provide legal advice on market definition and competition analysis

Notification Preparation and Submission

• Prepare and submit merger control filing materials

• Represent the filing parties in communications with MOFCOM and hearings held by MOFCOM

Remedy Proposal and Negotiation

• Devise and submit remedy proposals

• Negotiate remedies with MOFCOM

Trustee Service

• Act as trustees to supervise filing parties’ implementation of restrictive conditions


Anti - trust Investigation

Our services assist our clients at all stages in responding to anti-trust investigations, helping minimize potential adverse consequences. Clients who are involved in anti-trust investigations in other roles can also benefit from our services in order to protect their legitimate interests.

Dawn-raid Preparation

• Deliver training on dawn-raids

• Prepare dawn-raid guidelines, manuals and checklists

Case Analysis and Strategy Proposal

• Conduct substantive competition analysis and risk assessment of specific cases

• Advise on strategy in response to investigations

• Assist client to prepare relevant documents required by competition authorities

Leniency Application • Assess the strengths, merits and potential consequences of a possible leniency application

• Provide strategic advice on how to apply for leniency under the PRC laws and policies

• Prepare and submit leniency application

Internal Audit • Review and assess the legal implications of all relevant documents

• Conduct on-site interview to identify potential issues

• Carry out internal anti-trust violation audits and assist in preparing self-investigation reports

Facilitate Communication with Authorities and Relevant Industrial Associations

• Review and assess the legal implications of all relevant documents/evidence collected by the competition authorities

• Properly communicate and negotiate with the competition authorities, regulatory agencies, and relevant industrial associations

RectificationPlan Proposal

• Design and submit rectification proposals

• Communicate and negotiate with the competition authorities on the rectification plan

Services for Those Involved in Investigations in Other Different Roles

• Represent clients who are requested by the competition authorities to assist with investigations of their competitors or suppliers

• Assist companies to file complaints to the competition authorities in relation to monopolistic behavior of their competitors or suppliers

8 PwC

Anti - trust Compliance Program

• Deliver anti-trust law compliance training workshops

•

• Prepare anti-trust compliance manuals, policies and guidelines

•

• Carry out internal anti-trust risk audit to determine the level of compliance risks

•

• Conduct a competition compliance health check with regard to the commercial agreements, pricing policies, non-compete arrangements

Risk Analysis and Audit

Compliance Heath Check

Compliance Training

Compliance Manual

Improve Employees’ Awareness of AML Reduce Risk of Violation

Minimize Risk of Penalties


General Anti - trust Legal Advice

On-going legal advice concerning various issues involved in dealings with competitors, customers, suppliers and other competitive commercial behaviors

Monopoly Agreement Abuse of Dominance

• Review and advise on competition issues involved in horizontal agreements

• Review vertical agreements

• Review other commercial agreements and competitive behaviors involved in daily operations

• Advise on making assessment of market position

• Advise on potential abusive practices and other unfair competitive behaviors in relation to daily operations, such as pricing, discounts, tying/bundling, client royalty rebates, and refusal to deal, etc.

Administrative Monopoly IP-related Issues

• Review administrative monopoly-related issues

• IP Identification

• IP licensing issues

• IP policies of standards-setting organizations

• IP misuse

10 PwC

Marubeni Glencore

Service Length 2013~2015 2013~2015

Project Description

In May 2013, PwC was appointed by MOFCOM to act as the monitoring trustee for MOFCOM’s Decision in respect of certain aspects of the Marubeni acquisition of Gavilon. Following our appointment, PwC has worked closely with MOFCOM, Marubeni/ Gavilon management, their respective local/international counsels and SMEs from PwC US and PwC Japan.

In June 2014, PwC was appointed by MOFCOM to act as the monitoring Trustee for MOFCOM's Decision in respect of certain aspects of the Glencore acquisition of Xstrata. Following our appointment, PwC has worked closely with MOFCOM, legal advisor and sector SMEs from PwC Switzerland.

3、Our Credentials – Existing Projects & Relevant Experience

Existing Projects - Monitoring Trustee Service

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Relevant Experience - Merger Control

Represented Tata Motors on merger control filing in PRC with regard to its acquisition of Jaguar and Land Rover businesses from Ford

Represented Robert Bosch on merger control filing in PRC with regard to its acquisition of a European energy company

Represented Daimler AG on merger control filing in PRC with regard to its establishment of a joint venture with a Japanese multinational company to manufacture certain plastics components for automotive applications

Represented Daimler AG on merger control filing in PRC with regard to its establishment of a joint venture with a leading German group to manufacture a key component for hybrid and pure electronic vehicles

Represented Saint-Gobain on merger control filing in PRC with regard to its establishment of joint venture with a Japanese manufacturer for the manufacturing of component of OLED lighting

Represented Areva and Gamesa on merger control filing in PRC with regard to its establishment of joint venture to manufacture offshore wind turbine

Represented three world leading auto parts manufacturers on merger control filing in PRC with regard to its two concurrent transactions

Relevant Experience - Anti-trust Investigation

Represented a renowned multinational food company in the NDRC’s investigation against vertical price-fixing

Provided legal opinions for a stated-owned telecommunication company in the NDRC’s cartel investigation

Advised a leading auto parts manufacturer in the NDRC cartel investigation

Advised a leading Japanese auto parts manufacturer on submitting leniency application to the NDRC

Advised a leading electronic company on how to properly respond to the antitrust authority’s information request in a high-profile investigation on a semiconductor manufacturer

Advised a leading Chinese insurance company in NDRC’s investigation against price cartel


Relevant Experience - General Anti-trust Legal Advice

Assisted Daimler AG on reviewing anti-trust issues concerning the joint research, development and subsequent distribution of an electric motor product in PRC

Assisted a leading German conglomerate on reviewing the non-compete provision in the cooperation agreement with a Chinese enterprise

Assisted Daimler Northeast Asia on reviewing its pricing strategy of auto parts from Chinese Anti-trust law perspective

Offered Nippon Electric Glass anti-trust related legal advice

Offered Areva anti-trust related legal advice

Relevant Experience - Anti-trust Compliance Program

Advised NBA on anti-trust compliance in relation to the exercising of intellectual property rights

Advised Robert Bosch on anti-trust compliance

Provided Robert Bosch with anti-trust compliance training to the senior management of all its PRC subsidiaries and joint ventures

Advised MAHLE on reviewing its anti-trust compliance manual and acted as the hotline for its whistleblower system for China

Provided antitrust compliance training to China Life Property & Casualty Insurance Company

Provided antitrust audit training to Volkswagen

Provided SHARP with anti-trust compliance review

Provided Ingersoll Rand with anti-trust compliance review

Provided Varian (a world leading medical equipment supplier) with anti-trust compliance review

Provided A.O. Smith with anti-trust compliance review

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Contacts:

Stephen J Ducker

Tel: 010-6533 2279 [email protected]

William Gee


Sadina Wu

Tel: 010-6533 [email protected]

Catherine Shen


Annie Xue


www.pwccn.comThis content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

© 2015 PwC. All rights reserved. PwC refers to the China member firm, and may sometimes refer to the PwC network. Each member firm is a separate legal entity. Please see www.pwc.com/structure for further details.

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