The Antimonopoly Law and its Structural Shortcomings
Global Competition Policy Magazine, August 2008
14 Pages Posted: 13 Aug 2008 Last revised: 10 Jan 2009
Date Written: August 12, 2008
The new Chinese Anti-Monopoly Law (AML) represents substantial progress over the patchwork of prior antitrust rules. However, in spite of the overall positive impression that the AML has made, certain aspects of the law are not satisfactory.
This commentary focuses on three areas where structural shortcomings exist. First, the allocation of the enforcement powers to three distinct bodies creates a complicated institutional framework where conflicts are probable.
Second, certain of the AML's provisions contain derogations to the principle that competition policy is the only criterion to assess whether a given conduct is legal under the AML. These derogations have the potential of affecting the AML's credibility as a modern, economics-based antitrust law.
Third, the many open-ended provisions in the AML can be a double-edged sword. While leaving room for an economics-based, case-by-case approach, they also leave the door open to arbitrary enforcement actions and may reduce legal certainty for business operators.
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