CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
copy any documents and materials as request - ed. The competition authorities can have exten - sive access to all potential sources of evidence, including access to computers and working emails, account books, bank accounts, business agreements, seizure of relevant documents, etc, as deemed necessary by the authorities. During dawn raids, the target undertaking is permitted to have legal representation, either through outside or in-house counsel, to provide on-site legal assistance. It is typically required that power of attorneys be presented to the authorities to facilitate this (see 2.4 Role of Counsel ). 2.3 Spoliation of Evidence The spoliation of information is regarded as a refusal or impediment to the investigation. As the AML mandates full co-operation with Competi - tion Authorities from undertakings (including its employees) being investigated during the inves - tigation, Article 62 provides that the following actions are typically viewed as or refusals or impediments to the investigation: • refusing to provide materials or information; • providing false materials or information; and • hiding, destroying or transferring evidence. Engaging in such actions could lead to adminis - trative or even criminal liabilities (see 1.2 Regula- tory/Enforcement Agencies and Penalties ). 2.4 Role of Counsel The AML does not provide clear rules concern - ing the right to counsel during the cartel inves - tigation, nor detail the scope and limitations of such counsel’s role. In practice, any entity involved in the investigation retains the right to both in-house and outside counsel. Typically, the counsel is allowed to provide legal assistance
in a variety of ways. They can assist the entity in preparing the information requested and in responding to inquiries made by the Competi - tion Authorities, and can accompany the indi - vidual in interviews conducted by the Competi - tion Authorities. It is important to note that, with the introduc - tion of personal liabilities for involvement in car - tel arrangements, potential conflicts of interest may arise between the target undertaking and its legal representatives or directly account - able officers. In such scenarios, individuals may secure a separate legal counsel if needed. At the outset of defending against a cartel inves - tigation, the counsel would swiftly prioritise the following actions, which typically involve a swift collection and review of relevant documents, conducting interviews with key personnel and stakeholders, and maintaining effective commu - nication with the Competition Authorities: • identifying the concerns and the focus of the investigation; • understanding the fundamental aspects of the undertaking and the business under investigation; • developing the defence strategy, and organis - ing relevant facts and evidence accordingly; • preparing responses to inquiries from the Competition Authorities; and • assessing the applicability of leniency, exemptions, or suspension mechanisms to mitigate potential penalties. 2.5 Obtaining Evidence/Testimony Article 47 of the AML allows the Competition Authorities to obtain evidence, both documen - tary and non-documentary, via a range of meas - ures, provided that a written report has been
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