PDF《实务问题》

s harsh stance, Chinese courts have taken a more moderate approach to RPM. This approach, like the rule of reason applied in the United States, analyzes the economic effects of the RPM policy.[6] 2/6 The Shanghai High People'

s Court'

s decision in Rainbow v. Johnson &

Johnsonestablished the analytical framework to RPM that is used today.[7] The key distinction between the private and public approaches to RPM is that Chinese courts have found that RPM arrangements are only illegal when they have the effect of eliminating or restricting competition. The courts base this requirement on Article

13 of the AML, which states that a '

monopolistic agreement'

in this law refers to agreements, decisions or concerted actions which eliminate or restrict competition. [8] Ultimately, the Court in Rainbow identified four distinct factors for analyzing RPM: (1)the competitiveness in the relevant market, (2)the market share of the entity employing the RPM policy, (3)the purpose and/or motivation for RPM, and (4)the effect of the RPM policy, including a weighing of pro-competitive and anti- competitive effects.[9] The plaintiff bears the burden of establishing the illegality of an RPM arrangement. Therefore, in civil RPM cases in China, the mere existence of an RPM policy does not itself establish liability under the AML. Yutai v. Hainan Provincial Price Bureau Yutai v. Hainan Provincial Price Bureau On December 21,2017, the Hainan High People'

s Court issued a much-anticipated judgment in the first judicial review of the NDRC'

s approach to RPM. While many believed that the Court would end the five-year-long divergence between the NDRC and Chinese courts, the Court instead recognized and affirmed the different public and private approaches. While the2017 Yutai case represents a failed opportunity to unify the divergent public and private approaches to enforcement of RPM policies, it did provide guidance as to the future of RPM in China: two distinct enforcement standards persist, at least for now, depending on the plaintiff. Takeaw ay Takeaw ay RPM enforcement in China is difficult to predict. In the wake of Yutai, product manufactures in China must grapple with two completely different standards of RPM legality. In light of such an unpredictable landscape, product manufacturers must understand the risk-reward balance for adopting RPM programs. Manufacturers with a high market share raise the risk of being on the NDRC'

s radar for an enforcement action under the per se -like prohibition + exemption standard. However, manufacturers with a lower market share are likely to avoid public enforcement and only face private enforcement under the rule of reason -like approach. Where these 3/6 manufacturers have a business justification for an RPM program, the use of RPM is a measured risk with significant business benefits. Moreover, manufacturers can attempt to lower their risk of enforcement by adopting Unilateral Policies, one type of RPM.[10] A Unilateral Policy involves a manufacturer'

s unilateral announcement of (1)the minimum advertised or resale price of select goods, and (2)the refusal to deal with resellers advertising or selling below those prices. The AML specifically prohibits monopoly agreements, [11] and the essence of a Unilateral Policy is that it is not an agreement. Therefore, Unilateral Policies may prove to be a safer avenue for product manufacturers to implement RPM under either standard of RPM enforcement in China. M ichael R. M urphy M ichael R. M urphy Yujing Shu Yujing Shu Jack S. Brodsky Jack S. Brodsky K&