Recent Developments in China, the US and Europe
Edited by Michael Faure and Xinzhu Zhang
Chapter 4: Critical Issues in the Enforcement of the Anti-Monopoly Law in China: A Law and Economics Perspective
Roger Van den Bergh and Michael Faure* 4.1 INTRODUCTION Since 30 August 2007, China has a long awaited Anti-Monopoly Law. The law entered into force one year later, on 1 August 2008. However, the formal entry into force has not answered all questions with respect to the Chinese Anti-Monopoly Law (‘AML’ or the ‘Act’). Some of the questions that still arise as far as the implementation of the Chinese Anti-Monopoly Law is concerned relate to exactly how this Act will be implemented, what precise administrative structures will be put in place and what type of enforcement mechanisms will be applied.1 So far, it seems that the competence to implement the Chinese AntiMonopoly Law will be shared by three authorities, the State Administration for Industry and Commerce (SAIC), the National Development and Reform Commission (NDRC) and the Ministry of Commerce (MOC). These are three ministerial-level departments within the central government (Guo Wu Yuan, CG). The most recently adopted documents by the central government specify that the three authorities will have different responsibilities. Roughly, the SAIC will deal with anti-competitive agreements, abuse of dominant position and administrative monopolistic behaviour. Their competence would however exclude price-related anticompetitive activities. The NDRC would take charge of price-related monopolistic activities whereas the MOC would become competent to investigate merger and anti-competitive activities in transnational trade. Legal doctrine in China had suggested the creation of one single antitrust authority under the responsibility of the central government. The fact that now three separate entities will be created of...
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