CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
submitted to and approved by the principal of the Competition Authorities: • entering the business premises and other relevant locations of the target undertaking for inspection; • questioning individuals from the target under - taking and other relevant parties involved in the case; • inspecting and making copies of docu - ments and materials (vouchers, agreements, accounting books, business correspondence, electronic data, etc) of the target undertak - ing and other relevant parties involved in the case; • seizing or detaining evidence; and • inspecting the bank accounts of the target undertaking. Article 48 further provides that, when investigat - ing alleged monopolistic conduct, there shall be at least two law enforcement officers present. They must show their credentials and keep writ - ten records of interviews, signed by the individu - als questioned. The Competition Authorities are also obliged to adhere to the duty of confidentiality – protect the confidentiality of the informant’s identity (Article 46) and keep confidential the trade secrets, personal privacy and personal information they learn during the course of their law enforcement activities (Article 49). 2.6 Attorney-Client and Other Privileges Under the PRC antitrust legal framework, attor - ney-client privilege, as recognised in jurisdic - tions such as the US and the EU, is not explic - itly established. While the amended Article 38 of the Lawyers Law (2017) mandates that lawyers must maintain confidentiality for their clients, this requirement only applies to outside coun -
sel admitted to practice in the PRC and is not generally regarded as an equivalent to attorney- client privilege. Furthermore, this confidentiality obligation is not absolute. There are certain situ - ations where lawyers may be compelled or per - mitted to disclose client information, particularly when the client or others are involved in prepar - ing or carrying out actions that threaten national security, public safety, or seriously jeopardise the personal safety of individuals. Similarly, the privilege against self-incrimination is not explicitly recognised. In the meantime, target undertakings are required to co-operate with competition authorities and must not refuse or obstruct investigations (see 2.3 Spoliation of Evidence ). 2.7 Non-Cooperation In the PRC, it is unadvisable for undertakings to resist requests from the Competition Authori - ties, as such resistance could be interpreted as non-compliance or interference with the inves - tigation. Resistance could not only carry potential legal liabilities (see 2.3 Spoliation of Evidence ) but may also negatively impact the outcome of the case or result in harsher penalties for the alleged cartel activities under investigation. However, in practice, if undertakings have res - ervations or concerns about the requests made by the Competition Authorities, they are permit - ted to engage in discussions with the authorities, which can explore the possibility of excluding information that is either irrelevant or unobtain- able.
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