China Antitrust Law Journal (Complete Set)
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What are the necessary foundations of an effective system of competition law? To answer this question, we ordinarily think first about institutions—such as public enforcement agencies and courts—that are directly involved in the prosecution or adjudication of antitrust cases. These are vital, but not sufficient, ingredients for an effective competition law regime. The quality of a competition law system depends heavily on what Allan Fels, the former chair of the Australia Competition and Consumer Commission, has called “co-producers”—institutions beyond the formal apparatus of enforcement and dispute resolute whose work can enhance the performance of the competition regime.
The China Antitrust Law Journal promises to serve two objectives—to supply needed intellectual R&D to China’s anti-monopoly system and to illuminate areas for useful reform. The early years of China’s competition law system are truly extraordinary. China’s Anti-Monopoly Law (“AML”) has exerted a greater impact, at home and abroad, than any of the 130 or so nations with competition laws have realized in their first decade of operation.
The Journal is particularly welcome at this time when Chinese competition law has become so prominent in the world and China is becoming a leader, or at least prominent in following its own drummer while taking competition enforcement actions that are felt beyond its borders. The world wants to know what the Chinese Anti-Monopoly Law (“AML”) means, what to do to comply, and on a higher level, what is there that the world might learn from China’s initiatives?
Table of Contents
Table of Contents from Volume 1/ Summer 2017:
1. In Consideration of an EU-China Free Trade Agreement: Key Issues on State Aid and Subsidies
by Sujin Chan-Allen
This paper examines issues related to state aid and state-owned enterprises (“SOEs”) in the context of a prospective European Union (“EU”)—China Free Trade Agreement (“FTA”). Drawing from existing FTAs and competition policies, the analysis concludes with several proposals for potential provisions that may enhance effectiveness in subsidies/state aid governance within the prospective FTA.
2. Distribution Agreements Under China’s Anti-Monopoly Law and the Hong Kong Competition Ordinance
by Sandra Marco Colino
This paper discusses the use of distribution restraints in China and Hong Kong, and attempts to develop a general framework for their analysis under the Anti-Monopoly Law (“AML”) and the Competition Ordinance (“CO”). However, since economic theory is ambivalent as to the effects of vertical restraints, and they may also serve pro-competitive purposes, the chosen approach must aim to control their potential problems while at the same time leaving room for an assessment of their potential merits and justifications.
3. The Application of the Anti-Monopoly Law to the Pharmaceuticals Sector in China
by Bai Yong and Richard Blewett
This article explores the application of China's Anti-Monopoly Law (“AML”), in force since 2008, to the Chinese pharmaceutical sector. Competition law issues affecting this industry are technical, complex and varied, and have been a priority in antitrust enforcement to date. While the general assessment of these problems by China's competition authorities greatly mirrors international practice, there are some unique traits that aim to deal with the specific local context.
4. Regulatory Hurdles in the United States and the European Union Facing Mergers, Acquisitions and Joint Ventures Involving Chinese State-Owned Enterprises
by Tanisha A. James and M. Howard Morse
This article explores the potential stumbling blocks for transactions with Chinese state-owned enterprises imposed by merger review under the US Hart-Scott-Rodino Act and the European Union Merger Regulation, as well as reviews of the Committee on Foreign Investment in the US (CFIUS). The article then discusses the regulatory frameworks and hurdles transactions by and with such enterprises face in the U.S. and Europe, as well as the practical considerations that entities engaging in such transactions should keep in mind.
5. The Involvement of the Chinese Government in the US Vitamin C Antitrust Litigation: A Milestone for the Foreign Sovereign Compulsion Defense
by Scott A. Sher and Yuan Ji
The recent Vitamin C antitrust litigation in the United States has become particularly prominent in the discourse of the antitrust community. This article discusses the implications of the Vitamin C litigation and covers the application of the foreign sovereign compulsion doctrine in previous US cases. It also considers the repercussions of the judgment in subsequent trials, and particularly in situations in which US and foreign law come into conflict.
6. Antitrust and Anec-data
by Hon. Maureen K. Ohlhausen
At a time when fundamental policy decisions are being developed, this paper highlights the concerns of strict anti-injunction rules for standard-essential patents ("SEPs"), and defends the value of strong patent rights for an innovative economy. It questions criticisms that US antitrust enforcement is currently too lax in this regard, on the basis of the wide evidence available pointing towards the positive relationship between strong IP rights and innovation.
7. The Vitamin C Antitrust Litigation: An EU Perspective
by Paul Csiszár
This article discusses the 2016 decision of the US Court of Appeals for the Second Circuit in the Vitamin C litigation reversing a district court's decision to deny a motion to dismiss, which relied on international comity grounds. It provides a perspective from the European Union by covering the application of the state action doctrine by the European Courts and assessing the possible inconsistencies between jurisdictions.
8. China’s Anti-Monopoly Law: Shortcomings and Potential Solutions
by Yong Huang, Jin Shanming, and Frank Fine
This paper offers a high-level view of the successes and shortcomings of the Chinese antitrust system since its inception. The authors point out that the system could have been structured to provide greater clarity in how cases are allocated among the three PRC agencies; they suggest that the courts should be more independent, and they propose that SOEs should not be immune from the full application of the Anti-Monopoly Law.
9. Balancing the Application of China’s Anti-Monopoly Law and Intellectual Property Policies
by Xianlin Wang
The tensions between IP and competition law are a common occurrence in most antitrust jurisdictions, and China is no exception. Article 17 of the Chinese Anti-Monopoly Law (AML) can be used to control the misuse of such rights. This article discusses the extent to which the antitrust issues arising from IP can be tackled by the AML, and the action taken in China to date to prevent the potential problems.
10. The European Commission’s Experience in Multi-jurisdictional Mergers: Lessons Learned and Challenges of International Cooperation
by Carles Esteva Mosso
This article attempts to highlight the importance of inter-agency cooperation in merger investigations, and the benefits that are derived from joint efforts on the part of multiple competition authorities. It does so by focusing on the experience of the European Commission in this regard. While procedural and substantive challenges may exist, and the design and implementation of remedies still poses significant difficulties, the gains in efficiency and in the mutual learning process exacerbated by cooperation are crucial in a world where merger control regimes continue to proliferate.
11. A Review of the NDRC’s Activities in 2016
by Zhang Handong
12. Looking Back to Move Forward—Lessons from 125 years of US Antitrust Enforcement
by Renata Hesse
13. The Enforcement of China's Antitrust Laws by the State Administration for Industry and Commerce: Progress and Future Outlook
by Wanli Lu
14. The Role of Competition Policies in Actively Guiding the Innovation and Development of Enterprises
by Chunlin Han
Table of Contents from Volume 2 / Fall 2018:
Eleanor M. Fox
Antitrust Immunity For Airline Alliances: Legal and Institutional Frameworks in China
Jae Woon Lee and Xiongfeng Li
In a competitive market, an airline alliance is a flexible organizational form offering growth potential and a commonly used business practice in the industry. Although low-level airline alliances generally do not create competition law concerns, high-level airline alliances may have the object or effect of restricting competition. This makes necessary an analysis of competition law. The view in many jurisdictions is that if the efficiencies that an airline alliance enhances and the benefits it provides consumers outweigh its anticompetitive effects, the government can grant it an exception, which is known as antitrust immunity. In contrast, China’s ten-year old Antimonopoly Law does not set clear rules about antitrust immunity for airline alliances, and Chinese antitrust regulators have yet to formalize the process of granting antitrust immunity to airline alliances. However, there are telltale signs of reform.
Standards and Patent Assertion Entities at the IP-Antitrust Interface: Adhering to Basic Principles
Yee Wah Chin
The United States antitrust approach to intellectual property has evolved over time. The same antitrust analysis now applies to conduct involving IP as to conduct involving other forms of property, taking into account the speciﬁc characteristics of the particular property right.
However, there have been significant calls recently for presumptions that infringements suits and licensing conduct by patent assertion entities (“PAEs”) labeled “patent trolls” and holders of standard essential patents (“SEPs”) are monopolization or attempts to monopolize that violate Sherman Act § 2, 15 U.S.C. § 2. This paper argues that the basic principles of keeping in mind history and context, and general antitrust principles, apply equally to SEPs and PAEs as to other economic phenomena, and there is no need for any special presumptions.
Should Competition Agencies Tackle Cross-Border Algorithmic Collusion: A Focus on Young Competition Agencies
Pierre Horna and Leonila Papa
Young competition agencies have long struggled with brick-and-mortar cross-border cartels. Now, their problems are compounded by algorithmic collusions. Using the principles discussed by Ezrachi and Stucke in ‘Virtual Competition’ as the backdrop, this paper explores the rise of the ‘algorithm economy’ in the developing world and the competition issues it has brought on and provides some reflections about how young competition agencies can address these problems.
China’s Anti-Monopoly Law in Light of European Union Competition Law: a Comparative Perspective
The article aims to identify traces of European Union (“EU”) competition law in China’s Anti-Monopoly Law (“AML”). The analysis addresses general issues pertinent to competition law in China and proceeds to analyze EU law elements in each of the competition law pillars. The greatest influence of EU law is identified in addressing the abuse of dominance. The Chinese regulations, with minor exceptions, have fully incorporated the EU pattern. … The article concludes that the AML has been formed under the strong influence of EU competition law because the normative grounds, to a large extent, overlap. Nevertheless, because of differences in economic, political and social environments, the Chinese application should be expected to depart from the EU model, and similar normative legal concepts to be modified through interpretation. Identifying the areas of convergence as well as divergence, based on a black letter law analysis of the AML, is important for the evaluation of the AML in a global perspective. In addition, the analysis may contribute to gaining deeper understanding of the directions of the future development of the anti-monopoly law in China.
China’s Fair Competition Review System—A Winding Road Ahead
The purpose of this article is to reflect on local government interventions with negative effects on competition. We will review the origins of China’s recent attempt to rein in regional protectionism through its new Fair Competition Review System (“FCRS”), recalling the historical milestones and current state of the jurisprudence in the United States (“US”) and the European Union (“EU”) addressing the same issue. This article will conclude that while one has to be careful with drawing parallels, overseas experiences suggest that China’s leadership may well wish to consider improving the implementation mechanism of the FCRS by providing its central authorities with enforcement tools and opening up access to the domestic courts to address controversial issues as a last resort.
Antitrust Treatment of Standard Essential Patent Abuse: China’s Experience and Lessons
The issue of how to constrain the anti-competitive effects of abuses of standard essential patents (“SEPs”) has been a hot issue in antitrust enforcement around the world in recent years. China, with its Anti-Monopoly Law (“AML”), since 2008 has investigated a number of cases in this regard, including the milestone Qualcomm case concluded by the Chinese antitrust authority in 2015. During the past five years, both public enforcement initiated by antitrust authorities and private actions brought by companies in the field of SEP abuse have been active in China. This article, based on the review of laws and practices relating to the antitrust regulation of SEP abuse, argues that Chinese antitrust authorities have exerted great effort to use the AML as an effective weapon to balance SEP power and to safeguard consumer rights in the telecommunication sector. In conclusion, this article suggests that China is and will be the only major jurisdiction to actively regulate SEP abuse in public enforcement.
Antitrust Dawn Raids in China: On the Tenth Anniversary of Chinese Antitrust Enforcement
Todd Liao and Bonnie Li
This article will provide an overview of China antitrust enforcement and dawn raids over the past ten years and will discuss the main characteristics of China’s antitrust dawn raids, including the origins, processes followed, authority, raid strategies, and possible penalties. The article identifies “best practices” for dealing with dawn raids and provides guidance for obtaining leniency. We expect that these best practices and guidance will be directly relevant to investigations by the State Administration for Market Regulation (“SAMR”), the establishment of which is discussed at the end of this article.
The Role of Judges in the Development of Competition Law
Key Challenges for Competition in Telecommunications—Insights from the Hong Kong Competition Commission