Bid Rigging, A Faintly Discernible Enumeration Under Article 13 of the Anti-Monopoly Law in China
University of Pennsylvania Asian Law Review, Vol. 12, Iss. 2, 2016
23 Pages Posted: 24 Jan 2017 Last revised: 30 May 2018
Date Written: 2016
Article 13 of China’s Anti-Monopoly Law (AML) adopted an enumeration methodology to prohibit horizontal agreements, but the items enumerated do not include bid rigging. However, through case analysis, it is found that the National Development and Reform Commission of the P.R.C. penalized business operators that participated in bid rigging, an enumeration known as “fixing or changing the price of commodities,” according to article 13.1(1). Such practice is inappropriate as article 13.1(1) should be regarded as “specific price fixing,” as defined in this Note, which does not cover bid rigging. This penalization neglected the uniqueness of bid rigging as well. In contrast, article 13.1(6), a fallback provision, provides an appropriate legal basis for the AML to regulate bid rigging. Nevertheless, the fallback provision has limited publicity and could not exhibit the guiding function of the AML. Since bid rigging is one of the most serious types of anti-competition agreement, article 13 should be perfected to regulate bid rigging.
Keywords: Anti-Monopoly Law, bid rigging, hardcore cartel, General Price fixing, Specific Price fixing, fallback provision
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