Orrick is advising Baidu, China’s largest search engine, in its defense against a customer’s claim it was blacklisted on the site’s key word advertising service.
We checked in with Ted Henneberry at Orrick to find out why an American firm is helping on the first big antitrust case in China between two Chinese companies.
“It’s pretty much a Wild, Wild West. Its virgin territory,” Henneberry said. “We got involved because there’s virtually no antitrust laws in China.”
Really? None? … After the jump.
“There’s a law, but there’s been no application of it yet,” Henneberry said.
China’s Anti-Monopoly Law took effect Aug. 1, 2008, but no regulations have been issued on how to implement or enforce it. And no cases have ever tested it — until the Baidu case.
Baidu is the “Google” of China, the country’s largest search engine, with about a 60 percent market share. Its site even looks like Google’s front page. (Maybe that’ll be a different suit …)
Orrick thinks the Baidu case doesn’t even fall under antitrust, since it involves a customer, not a competitor.
“We’d use the term ‘standing’ here, over there they wouldn’t. It’s basically, ‘This isn’t what the Anti-Monopoly Law is about,’” Henneberry said. “This is a disgruntled customer, in effect.”
Orrick sent the Chinese court, which held a trial in April but hasn’t issued a decision, as many examples of antitrust cases it could find involving search engines and Web sites. So the Beijing First Intermediate People’s Court is now poring over briefs and complaints in cases involving Google, Yahoo and Amazon, among others.
“Baidu is looking for what they could use as benchmarks in order to defend themselves. I took some case law from other jurisdictions,” he said. “We provided a legal argument: What the plaintiff was complaining about wasn’t a violation of antitrust laws, there was no element of competition.”
Henneberry splits his time between London and D.C. Before that, he split his time between Dublin and Brussels as a member of the Irish Competition Authority from 2003 to 2006. In that role, he worked on antitrust issues that came before the Advisory Committee of the European Commission, in particular on major merger policy and competition enforcement.
— Amanda Royal
Follow me on Twitter