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China publishes anti-trust investigation procedures
June 19 2009

The recent release of a new set of rules describing how Chinese investigators must proceed when dealing with anti-monopoly practices will open target firms to “dawn raids”, according to an international law firm.


Steve Yu, Shanghai-based partner for Eversheds, wrote in a recent report that the release of the “Procedural Rules on Investigation and Sanctions by the Administration for Industry and Commerce on Monopoly Agreements and Abuse of Market Dominance” on June 5 will make on-site investigations and substantial fines for anti-trust activities in China a “real possibility”.


China published its anti-monopoly law in August last year, but because there has been a delay in releasing the procedural investigation rules, none of the companies which have been accused of anti-trust practices in China have been investigated yet, Mr Yu said.


But with the publication of the procedural rules, Chinese businesses could soon see the first wave of anti-monopoly investigations, he added.


Under the new rules, which take effect from the beginning of July, the State Administration for Industry and Commerce and provincial level administrations will be empowered to enter premises of businesses which are suspected of engaging in monopolistic business practices.


Officials will be authorised to question senior corporate executives, read, make copies of, or seize relevant paper and electronic documents, as well as examine the company’s bank accounts.


During an on-site investigation, at least two officials must be present, and they must make available certificates showing their authority to carry out the probe. The company may also be requested to supply a range of information on its operations, including its accounts for the last three years.


Failure to cooperate could result in a fine of up to RMB100,000, or other criminal liabilities. Companies being probed may apply in writing for a suspension of the investigation, if it provided details on how it intends to address the alleged monopolistic practices.


If a business has been found to have engaged in a monopoly agreement, they could be fined up to 10 per cent of its previous year’s turnover.


Mr Yu said that to ensure compliance, multinational firms need to take a pro-active approach in identifying and managing the anti-trust risks of its operations in China. They should carry out training with local management and conduct internal anti-trust audits on its Chinese subsidiaries.


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Obama lays out financial overhaul plan
June 19 2009

US president Barrack Obama has unveil his long-awaited blueprint for an overhaul of the financial services sector.


In a speech given at the White House, the president described the reforms as a sweeping overhaul of the financial regulatory framework not seen since the Great Depression, according to Reuters news agency.


Among the measures proposed by the administration include vesting the US Federal Reserve with new powers to monitor systemic risk in the economy, to prevent events such as the collapse of US investment bank Lehman Brothers or the bailout of insurance firm American International Group.


Banking regulation will be streamlined with the creation of a new National Bank Supervisor replacing both the Office of Thrift Supervision and the Office of the Comptroller of the Currency. A new Consumer Financial Protection Agency will oversee products from mortgages to credit cards, and have the power to ban unfair terms and practices, punish companies for violations, and set standards for banks and other lenders.


A Financial Services Oversight Council, chaired by the Treasury Department, will also be created with the aim of filling the regulatory gaps in the system and identifying the important firms which needs to be regulated by the Fed. It will compose of the Treasury Secretary, as well as the directors of the newly created National Bank Supervisor and the Consumer Financial Protection Agency, and the heads of the Securities and Exchange Commission and the Federal Housing Finance Agency.


Banks and other financial institutions will be required to boost their capital reserves. Still other measures will change how firms which deal with asset-backed securities and over-the-counter derivatives are regulated.


In announcing his plan, president Obama said that the current financial troubles could only be addressed by fundamental changes to the way the financial services sector was regulated, the report said.


“We are called upon to recognize that the free market is the most powerful generative force for our prosperity – but it is not a free license to ignore the consequences of our actions,” the president said.


Bloomberg has reported that the plans has been received with a mixed response by banks and lawmakers, some of whom were worried about the far reaching nature of some changes, as well as the uncertainty generated by the sheer scale of the reforms.


The plan will now go before the US Congress for debate. Barney Frank, chairman of the House Financial Services Committee, said that President Obama’s plan is expected to be passed “substantially” in its originally form, the report said.


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