Anti Monopoly Law and Practice in China 1st Edition by Stephen Harris, Peter Wang, Mark Cohen, Yizhe Zhang, Sebastien Evrard 019539478X 9780195394788

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ISBN 10: 019539478X 

ISBN 13: 9780195394788

Author: H. Stephen Harris; Peter J. Wang; Mark A. Cohen; Yizhe Zhang; Sebastien J Evrard

The China Anti-Monopoly Law (AML), which became effective August 1, 2008, is the first comprehensive competition law enacted by China. The AML prohibits a broad array of agreements between competitors and commercial counterparties, as well as competitive conduct by single firms that may harm the competitive process. In addition, it establishes a mandatory administrative review procedure for mergers and acquisitions between companies meeting certain sales thresholds, globally or in China. Beyond these fundamental provisions, the AML prohibits certain types of administrative abuses believed to be prevalent in China and establishes a complex set of administrative agencies with broad powers to enforce the law. Anti-Monopoly Law and Practice in China is the first comprehensive treatment of the AML and the practice of antitrust law under this new system. Each chapter on the substantive provisions of the law includes practical advice on approaches to meeting the challenge of complying with the law’s requirements, including analysis of likely interpretations and applications of the AML based on precedents in related economic laws and actions by other administrative agencies. Where policy choices are uncertain, the text will explore probable developments in China based on comparable applications of competition laws in other jurisdictions.

Table of contents:

CHAPTER 1: Legislative History of the Anti-Monopoly Law

I. A Brief Overview of the Context and History Behind the Drafting of the Anti-Monopoly Law

II. The Anti-Monopoly Law: Background and Substantive Provisions

A. The Objectives of the Law

B. Extraterritorial Reach of the Law

C. Application of the Law to Regulated Sectors of the Economy

D. Market Definition

E. Prohibition of Concerted Action

F. Abuse of Dominance

G. Merger Review

H. Administrative Abuses

I. The Anti-Monopoly Enforcement Authority

J. Legal Liability

K. Abuses of Intellectual Property Rights and Other Supplementary Provisions

CHAPTER 2: Monopoly Agreements

I. Scope of Application of Chapter 2 of the AML

A. The Notion of an “Undertaking”

B. The Notion of “Agreement”

C. The Notion of a “Restriction of Competition”

D. The Element of Intent

II. Prohibited Monopoly Agreements Between Competitors

A. Price-Fixing Agreements

B. Agreements to Restrict Output

C. Market Allocation Agreements

D. Agreements to Restrict the Purchase or Development of New Technology or New Facilities

E. Joint Boycotts

F. Other Monopoly Agreements as Recognized by the AMEA

G. Bid-Rigging

III. Prohibited Vertical Agreements

A. Resale Price Maintenance

B. Other Vertical Agreements

IV. Exemptions for Agreements with Beneficial Purposes

A. R&D Agreements

B. Agreements Enhancing Efficiency or Unifying Specifications and Standards

C. Agreements Involving Small and Medium-Sized Enterprises

D. Agreements Maintaining the Public Welfare

E. Crisis Cartels

F. Export Cartels

G. Other Exemptions Stipulated by Law or the State Council

CHAPTER 3: Abuse of Dominance

I. Assessment of a Dominant Market Position

A. Market Definition

B. Definition of Dominance

C. Presumptions of Dominance Based on Market Shares

D. Factors to Be Considered in Determining Whether a Firm Has a Dominant Market Position

II. Conduct that May Constitute Abuse of a Dominant Market Position

A. Unfairly High Prices and Unfairly Low Prices

B. Selling at Prices Below Cost (Predatory Pricing)

C. Refusals to Deal

D. Exclusive Dealing

E. Tying and Imposing Other Unreasonable Trading Conditions

F. Discriminatory Treatment, Including Price Discrimination

G. Abuses of a Dominant Market Position Involving Intellectual Property

III. Court Decisions

CHAPTER 4: Merger Control

I. Introduction

II. The Scope and Reach of China’s Merger Control Scheme

A. Covered Transactions

B. Extraterritorial Jurisdiction and Nexus

C. Industry-Specific and National Security Review

III. Thresholds and Eligible Transactions

A. Mandatory Review Thresholds

B. Discretionary and Voluntary Reviews

C. Penalties for Failure to File

IV. Review Process

A. Filing

B. Initial Review Period

C. Further Review Periods

V. Detailed Information Requirements

A. Initial Merger Filing

B. Investigation

C. Third Parties

VI. Substantive Standards

A. Overall Review Criteria

B. Relevant Markets and Market Definition

C. Theories of Anticompetitive Effects

D. Procompetitive Effects and Efficiencies

VII. MOFCOM Decisions

A. Approvals

B. Denials

C. Conditional Approvals

D. Appeal

VIII. Conclusion

CHAPTER 5: Cases Involving Government-Related Entities

I. Administrative Monopolies

A. The Treatment of Administrative Monopoly Under the AML

B. Procedural Rules Addressing Administrative Monopoly

C. Jurisdiction in the Courts

II. State-Owned Enterprises

A. History and Regulation of SOEs

B. Application of the AML to SOEs

C. Actual AML Enforcement Against SOEs

III. Trade Associations

CHAPTER 6: Intellectual Property Rights Under the AML

I. China’s Increased Focus on Intellectual Property Rights

II. Abuses of IP Rights: Article 55 of the AML

A. Rights Covered by Article 55 of the AML

B. The Meaning of Article 55 of the AML

III. Technology Transfer Agreements

A. Agreements Between Competitors (Article 13 of the AML)

B. Agreements Between Noncompetitors (Article 14 of the AML)

IV. Refusals to License Intellectual Property Rights

V. Technology Pools and Standards

A. Technology Pools

B. Standard-Settings Agreements

VI. Abuse of Technological Protection Measures

VII. Anticompetitive IP Litigation

VIII. Enforcement and Remedies

CHAPTER 7: The Enforcement Agencies: AMC and AMEA

I. Enforcement Structure

A. The Anti-Monopoly Commission

B. The Anti-Monopoly Enforcement Authorities: MOFCOM, SAIC, and NDRC

C. Other Relevant Government Agencies

II. Powers and Duties of the AMEA

A. Investigative Powers

B. Commitments

C. Decisions

D. Penalties

E. Leniency

F. Malfeasance by Enforcement Personnel

III. Rights of Persons Under Investigation

A. The Right to Be Heard

B. Confidentiality

C. Attorney-Client Privilege

IV. Administrative Reconsideration of AMEAs’ Decisions

V. International Cooperation and Coordination of Anti-Monopoly Authorities

A. Bilateral Cooperation and Exchanges

B. Multilateral Cooperation and International Organizations

CHAPTER 8: The Role of the Courts in AML Enforcement

I. The PRC Judicial System

A. Overview

B. The Structure of the Court System

C. Procedural Issues

II. Basis for Judicial Enforcement of Anti-Monopoly Matters

A. Private Civil Enforcement

B. Administrative Litigation

C. Criminal Prosecution

CHAPTER 9: Competition-Related Laws Other than the AML

I. The Anti–Unfair Competition Law

A. Introduction

B. Competition-Related Provisions of the AUCL

C. Enforcement of the AUCL

D. Relationship Between the AUCL and Other Laws

II. The Price Law and Regulations

A. The Price Law

B. Penalties for Violations of the Price Law

C. Other Implementing Regulations and Rules Under the Price Law

D. Administrative Enforcement of the Price Law

III. Bidding Law

A. Provisions of the Bidding Law

B. Enforcement

IV. Contract Law

V. Foreign Trade Law

A. Foreign Trade Law

B. Regulation on Administration of Import and Export of Technologies (RAIET)

VI. Patent Law

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