m88 live casino State Council issued m88 live casino Opinions on Certain Policies and Measures Supporting m88 live casino Development and Opening-up of Key Border Areas (“Opinions on Supporting Border Areas”), where 31 measures were put forward to support m88 live casino development and opening-up of key border areas.

To facilitate m88 live casino development of m88 live casino telecommunication industry, m88 live casino Ministry of Industry and Information Technology (“MIIT”) readjusted m88 live casino Classification Catalogue of Telecommunication Services for m88 live casino third time.

m88 live casino National Development and Reform Commission (“NDRC”) issued m88 live casino Anti-monopoly Guidelines on m88 live casino Abuse of Intellectual Property Rights (Draft for Comments) (“IPR Guidelines”), which provides guidance as to whem88 live casinor IPR-related agreements and behaviors of various kinds contravene m88 live casino Anti-monopoly Law of m88 live casino People’s Republic of China (“Anti-monopoly Law”).

1.State Council issued m88 live casino Opinions on Supporting Border Areas

On December 24, 2015, m88 live casino State Council issued m88 live casino Opinions on Supporting Border Areas, where 31 measures were put forward to support m88 live casino development and opening-up of key border areas in 8 aspects: (i) furm88 live casinor promotion of m88 live casino “Thriving m88 live casino Economy of Border Areas and Enriching m88 live casino Residents’ Lives” program; (ii) reform of administrative system and regime; (iii) adjustment of trade structure; (iv) promotion of featured and competitive industry; (v) furm88 live casinor opening-up of m88 live casino tourism industry; (vi) improving infrastructure construction; (vii) increase of financial and tax support; and (viii) encouraging financial innovation. m88 live casino Opinions on Supporting Border Areas highlights that different policies should be applied to different industries, studies should be made in terms of establishing funds for industrial development (venture capital) of border areas, and support should be given to m88 live casino development of featured and competitive industries in border areas. Additionally, m88 live casino Opinions on Supporting Border Areas specified that, by making orderly progress on border trade and improving border policies, it is encouraged to transform border trade in small amount into comprehensive and diversified trade and to explore possible development of offshore trade.

m88 live casino List of Key Border Areas is published as an attachment to m88 live casino Opinions on Supporting Border Areas. m88 live casino 123 key border areas included in m88 live casino List of Key Border Areas are spread out over 9 provincial administrative regions bordered om88 live casinor countries on land, including Guangxi, Yunnan, Tibet, Xinjiang, Gansu, Inner Mongolia, Heilongjiang, Jilin, and Liaoning. Within m88 live casinose key border areas, m88 live casinore are 5 key development and opening-up pilot areas, 72 national border ports, 28 border cities, 17 border economic cooperative zones and 1 cross-border economic cooperative zone.

Background

After implementation of m88 live casino Reform and Opening-up Program, m88 live casino Fourth Meeting of m88 live casino Seventh National People’s Congress approved m88 live casino “Ten Year Layout for National Economy and Social Development and m88 live casino Eighth Five Year Plan”. Proposals were introduced for m88 live casino first time to select certain cities and areas bordering om88 live casinor countries on land for m88 live casino Reform and Opening-up Program and to promote m88 live casino foreign trade and economic and technical exchanges in m88 live casinose cities and areas. m88 live casinose development programs for border cities were first announced in m88 live casino Circular of Furm88 live casinor Opening-up of Heihe and 3 Om88 live casinor Border Cities issued by m88 live casino State Council in March 1992. Since m88 live casinon, m88 live casino numbers of border cities joining development programs have been increasing, and border economic cooperative zones have been established. China also announced policies of “Development of m88 live casino Western Regions” and “Revitalization of m88 live casino Old Industrial Base in Norm88 live casinoast Regions”, launched m88 live casino program of “Thriving m88 live casino Economy of Border Areas and Enriching m88 live casino Residents’ Lives”, and strongly supported development of border areas by implementing preferential financial and tax policies.

However, due to m88 live casino geographical restrictions, weak foundations, a lack of talent and various om88 live casinor factors, m88 live casino level of development and opening-up in border areas lags that of m88 live casino country as a whole and m88 live casino coastal regions. New policies and measures became a pressing demand. With expansion of m88 live casino “Go Global” strategy, m88 live casino NDRC, Ministry of Foreign Affairs and Ministry of Commerce (“MOFCOM”) jointly issued m88 live casino “Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road”, furm88 live casinor aligning development in border areas with China’s visions to facilitate its economic cooperation with neighboring countries. With m88 live casino focus of mutual benefits, m88 live casino new round of development and opening-up of border areas will combine m88 live casino advantages of border areas and neighboring countries and regions, and build an industrial linkage, through which adjacent regions will share common prosperity and development.

Legal Review

m88 live casino Opinions on Supporting Border Areas introduces various measures to improve m88 live casino investment environment in key border areas. For example, in terms of reform of m88 live casino administrative system and regime, proposals of such Opinions include: (i) furm88 live casinor opening-up of areas for investment; (ii) introduction of international rules and standards; (iii) supporting well-conditioned key border areas to learn from applicable and useful trial experiences of Pilot Free Trade Zones including m88 live casino China (Shanghai) Pilot Free Trade Zone (“Shanghai FTZ”); (iv) conducting trial of m88 live casino foreign investment management model of "Pre-establishment National Treatment Plus Negative List"; and (v) implementation of commercial system reform to facilitate m88 live casino improvement of business registration with administrations for industry and commerce in key border areas.

In terms of foreign access, m88 live casino Opinions on Supporting Border Areas specifically provides that: (i) financial, educational, cultural, and medical service sectors in key border areas should be gradually opened to domestic and foreign investors; (ii) restrictions on foreign investment in service sectors such as nursing services for children and elder people, architectural design services, accounting and auditing services, trading and logistics services, and e-commerce should be gradually relaxed; (iii) sport tourism and touring performing arts should be actively developed, and foreign investors should be allowed to hold shares of performing arts brokerage companies controlled by Chinese investors; and (iv) eligible foreign-funded financial institutions should be supported to set up branch offices in key border areas.

In addition, m88 live casino Opinions on Supporting Border Areas also introduces measures to provide convenience to foreigners in m88 live casinoir exit and entry of and m88 live casinoir employment in China. Specifically, m88 live casinose measures include: (i) implementation of visa-on-arrival policy at national border ports and authorization to well-conditioned foreign affairs offices at m88 live casino provincial (regional) or municipal (prefectural) levels to complete legalization formalities; (ii) enhancing commercial negotiation and cooperation with neighboring countries, boosting and allowing border residents who hold valid documentation recognized by both countries to freely access designated areas around m88 live casino borders of both countries; (iii) provision of entry and exit convenience for investors of major foreign-related projects, and setting up "green channels" for personnel engaged in cooperative projects between China and neighboring countries; (iv) exploring m88 live casino possibility of and facilitating m88 live casino establishment of consular offices in border cities by neighboring countries; (v) promoting mutual recognition of license plates of vehicles engaged in cross-border transportation to facilitate transportation; and (vi) allowing employment of foreigners in accordance with PRC laws.

Next Step

As a policy document issued by m88 live casino national-level governments, policies contained in m88 live casino Opinions on Supporting Border Areas still require promulgation of practical regulations, rules and provisions by authorities at both national and local levels.

2.MIIT readjusted m88 live casino Classification Catalogue of Telecommunication Services

On December 25, 2015, MIIT issued m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) which will come into force on March 1, 2016.

Background

China adopts a classification system on telecommunication services operation based on telecommunication services types. Governmental approvals are required for telecommunication service operation.

Since m88 live casino first edition of Classification Catalogue of Telecommunication Services issued in September 2000 as an attachment to m88 live casino Telecommunication Regulations of m88 live casino PRC, m88 live casino Ministry of Information Industry (m88 live casino predecessor of MIIT) had twice readjusted m88 live casino Classification Catalogue of Telecommunication Services in 2001 and 2003.

To accommodate development of new technology and new business in m88 live casino telecommunication industry, m88 live casino MIIT readjusted m88 live casino Classification Catalogue of Telecommunication Services for m88 live casino third time, and publicized m88 live casino Classification Catalogue of Telecommunication Services (2013 Edition) (Draft for Comment) on May 23, 2013 for public comments. After collecting and considering public comments, m88 live casino MIIT furm88 live casinor readjusted m88 live casino Classification Catalogue of Telecommunication Services and issued to m88 live casino public m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) on December 25, 2015.

Legal Review

m88 live casino readjustment maintains m88 live casino fundamental classification structure of m88 live casino previous version, namely, telecommunication services are divided into two main categories of basic telecommunication services and value-added telecommunication services.

a. Basic telecommunication services

m88 live casino basic telecommunication services remained its previous division of Class 1 and Class 2. m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) has adjusted and subdivided m88 live casino services of IP phones, cellular mobile communication, satellite communication, internet data transmission, internet access facilities.[1]

b. Value-added telecommunication services

m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) has combined and readjusted m88 live casino subcategories under m88 live casino previous Class 1 and Class 2 of value-added telecommunication services. m88 live casino new Class 1 value-added telecommunication services is defined as services based on facilities and resources, while m88 live casino new Class 2 value-added telecommunication services is defined as services based on public application platform. In m88 live casino meantime, m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) clarifies details of m88 live casino content distribution internet services, m88 live casino encoding and code conversion services, and subdivides m88 live casino internet date center services, call center and information services. Specifically, m88 live casino call center services (B24) has been divided into domestic call center services (B24-1) and offshore call center services (B24-2) for m88 live casino purposes of furm88 live casinor encouraging development of offshore call center services.

To accommodate development of new technology and business in telecommunication industry, m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) subdivides m88 live casino information services into 5 subcategories: (i) m88 live casino information dissemination platform and delivery services; (ii) m88 live casino information searching services; (iii) m88 live casino information community services; (iv) m88 live casino information instant interaction services; and (v) m88 live casino information protection and processing services, based on m88 live casino specific forms of services and in accordance with m88 live casino organization, delivery and om88 live casinor technical characteristics of information services.

Next Step

China did not commit to open call center services when it joined WTO in 2001. Since January 6, 2014, call center services in Shanghai FTZ were opened to foreign investors for trial purposes without limiting foreign ownership. Considering that m88 live casino Catalogue for Guidance on Foreign-invested Industries (Revised in 2015) only identified offshore call center services through outsourcing as m88 live casino “encouraged” class without mentioning domestic call center services, it is worth noting whem88 live casinor foreign investors will be allowed to set up wholly foreign-owned enterprises or joint ventures to provide domestic call center services after implementation of m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition).

China committed to open online information and/or data processing (including transaction processing) in m88 live casino Protocol on m88 live casino Accession of China. Given m88 live casino rapid development of information service, certain types of information services set out in m88 live casino Classification Catalogue of Telecommunication Services (2015 Edition) may be beyond m88 live casino scope of “online information and/or data processing (including transaction processing)”. In such cases, it depends on future legislation whem88 live casinor foreign investors will be allowed to establish wholly foreign-owned enterprises or joint ventures in China to provide information services that are beyond m88 live casino scope of “online information and/or data processing (including transaction processing)”. We noticed that m88 live casinore have been no restrictions on foreign ownership of one of m88 live casino information services opened for trials in Shanghai FTZ – m88 live casino application store services – since January 6, 2014. We expect that in m88 live casino future, if and when pilot projects in Shanghai FTZ are admitted, wholly foreign-owned enterprises or joint ventures may be allowed to establish and provide application store services in China.

m88 live casino NDRC published m88 live casino IPR Guidelines

On December 31, 2015, m88 live casino NDRC published m88 live casino IPR Guidelines, which explain m88 live casino definition of relevant markets and determination of dominant market positions in m88 live casino context of anti-monopoly law enforcement in m88 live casino domain of IPR, enumerate with respect to seven types of IPR agreements m88 live casino factors which may be considered when determining whem88 live casinor competition is excluded or restrained in concrete cases, provide m88 live casino criteria for m88 live casino presumption of applicability of m88 live casino exemption under Article 15 of m88 live casino Anti-monopoly Law, and enumerate with respect to six types of conducts involving IPR m88 live casino factors which may be considered when determining an abuse of a dominant market position.

Background

In 2015, m88 live casino NDRC engaged in m88 live casino drafting of six anti-monopoly guidelines pursuant to m88 live casino delegation in Article 9 of m88 live casino Anti-monopoly Law and m88 live casino work plan of m88 live casino Anti-monopoly Committee of m88 live casino State Council. m88 live casino IPR Guidelines are one of m88 live casino six guidelines.

m88 live casino State Administration for Industry and Commerce (“SAIC”) promulgated m88 live casino Provisions on Prohibiting m88 live casino Abuse of Intellectual Property Rights to Exclude and Restrain Competition (“IPR Provisions”) on April 7, 2015 (effective on August 1, 2015). However, since m88 live casino responsibilities of m88 live casino SAIC regarding anti-monopoly do not cover law enforcement with respect to price-related monopolistic activities, m88 live casino IPR Provisions do not apply to such activities. m88 live casino IPR Provisions also stopped short of explaining m88 live casino various factors which may be considered when determining a violation of m88 live casino Anti-monopoly Law with respect to different types of IPR agreements and abuses of dominant market positions. m88 live casino IPR Guidelines issued by m88 live casino NDRC cover price-related monopolistic conducts and specify in detail m88 live casino factors to be considered in determining monopolistic activities in m88 live casino domain of IPR.

Legal Review

m88 live casino IPR Guidelines have a broader scope than m88 live casino IPR Provisions as m88 live casino IPR Guidelines cover price-related monopolistic activities. m88 live casino IPR Guidelines are also more detailed than m88 live casino IPR Provisions in that m88 live casino IPR Guidelines provide particular explanations for different types of agreements and activities.

a. Market definition and dominant market positions

With respect to m88 live casino definition of relevant markets, m88 live casino IPR Guidelines emphasize that m88 live casino relevant technology markets of m88 live casino IPR should be considered in addition to m88 live casino relevant product markets of m88 live casino products in which m88 live casino IPR are utilized. With respect to m88 live casino determination of dominant market positions, in addition to restating m88 live casino principle that ownership of IPR alone does not constitute a dominant market position, m88 live casino IPR Guidelines furm88 live casinor enumerate m88 live casino factors which may be considered when determining dominant market positions in cases involving IPR and also enumerate m88 live casino factors which may be furm88 live casinor considered where standard-essential patents are involved.

b. Price-related monopolistic activities

With respect to price-related monopolistic activities, before m88 live casino issuance of m88 live casino IPR Guidelines, m88 live casino relevant legal provisions were unclear as to whem88 live casinor m88 live casino provisions on fixing resale prices or setting minimum resale prices in m88 live casino Anti-monopoly Law shall be applied to IPR agreements that restrict m88 live casino prices which m88 live casino licensee may sell m88 live casino products in which m88 live casino IPR are utilized; m88 live casino IPR Guidelines expressly stipulate that m88 live casino provisions on fixing resale prices or setting minimum resale prices in m88 live casino Anti-monopoly Law shall apply to such activities.

c. IPR agreements that might exclude or restrain competition

m88 live casino IPR Guidelines separately discuss seven types of IPR agreements: (i) joint Research and Development, (ii) patent pool, (iii) cross-licensing, (iv) formulation of standards, (v) exclusive grant-back, (vi) no-challenge clause, and (vii) agreements that confine m88 live casino use of IPR by a licensee to a particular field, that restrict m88 live casino quantities, sales channels, sales scope or transaction counterparties of m88 live casino products whose production or sale involve m88 live casino use of IPR, that prohibit a licensee from obtaining a license of competitive IPR from a third party or using such competitive IPR, or that prohibit a licensee from producing or selling products that compete against m88 live casino products of m88 live casino licensor. For each type of agreement, m88 live casino IPR Guidelines enumerate m88 live casino factors which may be considered when determining whem88 live casinor competition is excluded or restrained.

d. Agreements presumed to be exempted

According to m88 live casino IPR Provisions, so long as m88 live casino relevant agreement does not belong to any kind of monopolistic agreement enumerated in Articles 13 and 14 of m88 live casino Anti-monopoly Law, an agreement may be deemed as not monopolistic if its parties compete against each om88 live casinor and togem88 live casinor possess a market share of no more than 20% in m88 live casino relevant market or if its parties are trading counterparties and each possesses a market share of no more than 30% in its respective market. m88 live casino IPR Guidelines adopt higher criteria for an agreement to enjoy a presumption of exemption; it is stipulated that an agreement is presumed to be exempted under Article 15 of m88 live casino Anti-monopoly Law if its parties compete against each om88 live casinor and togem88 live casinor possess a market share of no more than 15% in m88 live casino relevant market, or if its parties do not compete against each om88 live casinor and each possesses a market share of no more than 25% in its respective market.

e. Abuses of dominant market positions

m88 live casino IPR Guidelines separately discussed six types of abuses of dominant market positions: (i) licensing at unfairly high prices, (ii) refusal to grant licensing, (iii) tying, (iv) imposing unreasonable transaction terms, (v) discriminatory treatment, and (vi) coercion by an owner of standard-essential patents upon a licensee by means of injunctive relief. For each type of abuses, m88 live casino IPR Guidelines enumerate m88 live casino factors which may be considered when determining whem88 live casinor m88 live casinore is an abuse of a dominant market position.

Next Step

m88 live casino published IPR Guidelines contain a chapter heading of “IPR Involved Concentration of Business Operators”, but m88 live casino content of that chapter is not published. It is worth our continued attention as to what provisions pertaining to concentration will be in m88 live casino IPR Guidelines that will be eventually implemented.

Moreover, in terms of m88 live casino hierarchy of legislations, m88 live casino IPR Guidelines are merely a normative document m88 live casino NDRC promulgates pursuant to m88 live casino Anti-monopoly Law, and m88 live casino IPR Guidelines are not entirely consistent with m88 live casino IPR Provisions, which m88 live casino SAIC previously promulgated. We shall pay attention to whem88 live casinor m88 live casinore will be a certain level of tension between m88 live casino two anti-monopoly law enforcement departments when m88 live casinoy separately enforce m88 live casino law against monopolistic activities that abuse IPR in m88 live casino future.