Should China Harmonize Its Merger Assessment With the U.S. and EU

Abstract

China’s Anti-Monopoly Law (AML) came into force in August 2008, and has been deemed “the equivalent of the United States’ (U.S.) Sherman Antitrust Act or the analogous portions of the Treaty Establishing the European Community.”

From the very beginning, the merger control regime in China has been more intensively scrutinized and analyzed than the enforcement of anti-competitive agreements and abuse of dominance, and many of the merger parties are multinational corporations whose mergers would be notified to multi-jurisdictions. Consequently, there were some controversial decisions, such as P3 Alliance, Google/Motorola, Seagate/Samsung, which are divergent from the decisions of the major merger authorities such as the European Union (EU) Commission or the U.S. FTC for the same cases. Some of the decisions made by the Ministry of Commerce (MOFCOM) were fraught with unusual analytical process and remedies. The Chinese competition authorities have also been involved in international cartels (e.g. LCD panel) as well as abuse of dominance cases (e.g. Qualcomm) that were investigated by a number of major jurisdictions. The international profile of the Chinese antitrust authorities is described as “one of the world’s youngest and least understood regulators.”