Recent Developments in China, the US and Europe
Edited by Michael Faure and Xinzhu Zhang
Chapter 12: Monopoly Agreements and Abuse of Dominance: Some Remarks About the Substantive Rules
Roberto Pardolesi 12.1 LAW STILL ON THE BOOKS The Chinese Anti-Monopoly Law (AML), especially the portion concerning the substantive rules devoted to restrictive agreements and abuse of dominant position, is the fruit of a long and thoughtful process of elaboration of experiences that evolved elsewhere. Needless to say, any reasonable evaluation of this discipline will have to wait for consistent enforcement, which might drastically influence the impact of the law. As of now, the choices of the Chinese legislator can be taken as a valuable benchmark for assessing the penetration of the two pivotal antitrust models – those of the US and the EU – and, even more, of the basic philosophies underlying them. The following notes will collect a few remarks about AML as it stands, and the tentative integrations contained in the draft regulations proposed by the authorities in charge of their enforcement. 12.2 MONOPOLY AGREEMENTS: AN OVERVIEW OF STATUTORY PROVISIONS Monopoly agreements between competing undertakings (one of the three categories of monopolistic behaviour contemplated by Article 3 AML) are governed by Articles 13 through 16 of the AML. At this level, the concept of monopolistic agreement among business operators is left largely undefined. The only specification in the last paragraph of the statutory provision explains that the label ‘monopolistic agreement’ may refer also to decisions (which should plausibly evoke deliberations of trade associations)1 and concerted actions aiming to restrict or eliminate competition. Borrowing from the style of the EU 281 M2607 - FAURE TEXT.indd 281 20/05/2011 16:18...
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