|Abstract as per original application
With the adoption of the Anti-Monopoly Law (“AML”) in 2007, China officially joined the global competition law community. In the space of ten years, China has quickly established itself as one of the most prominent competition law jurisdictions, especially as far as merger review is concerned. However, the path to prominence has been rocky at times. The country has been accused of allowing political bias or protectionist instinct to seep into its AML enforcement. Foreign observers have argued that China has pursued industrial policy objectives through its merger review enforcement in particular. While political bias is difficult to prove without access to closed-door deliberations of the enforcement authorities, it would be helpful to examine whether China’s enforcement record is consistent with established competition law principles. To the extent that cases have been decided in accordance with such principles, then charge of political bias becomes less damaging.
Another issue that is worth examining in AML enforcement thus far is the dual track enforcement system consisting of the enforcement authorities and the courts. Due to the lack of discovery procedures in Chinese courts, the ability of the courts to handle certain cases, such as cartels, is necessarily limited. Therefore, the Chinese courts are likely to focus on cases in which availability of evidence, at least evidence on the existence of the conduct, is less of an issue, namely vertical agreements and abuse of dominance cases, especially the ones that the authorities have refused to take. This is potentially problematic because the enforcement authorities and the courts have adopted different approaches to the same conduct, such as resale price maintenance. Therefore, this proposed project will examine this issue and put forward possible solutions.
Lastly, this proposed project examines whether China needs a contextualized approach to competition law enforcement that takes into account its somewhat unique domestic socio-economic circumstances. These include the need to incorporate development considerations, especially technology catch-up, and reflect the complex and omnipresent interaction between the state and markets. A contextualized approach will in turn affect China’s treatment of the intellectual property-competition interface, merger review, conduct enforcement, and regulation of abuse of administrative monopoly. This proposed project will suggest ways in which the above four areas of AML enforcement will need to be adjusted as a result of the aforementioned socio-economic circumstances if a contextualized approach is deemed more appropriate for China.