Procedural Fairness in Chinese Antitrust

Abstract

This chapter offers an overview of procedural fairness in Chinese antitrust.

To a certain extent, issues of procedural fairness are intertwined in China with substantive issues of competition law and economics. Part of the complexity has to do with the newness of the AML and with authorities working through a number of cases, industries, and types of conduct that are issues of first impression. Under such circumstances it takes time to build core competencies on the part of the competition authorities. Sometimes what may seem to be procedural fairness issues (such as delay or requests for information that does not seem directly related to the case at hand) may in fact be a function of authority staff coming up to speed on issues for which there is no institutional knowledge.

The level of transparency in the Chinese system, at least on paper, bears a resemblance to the European system of procedural fairness in an antitrust setting. However, in practice, the lack of transparency and due process in China suggests behavior that does not comport with the emerging international norms.

Similar to transparency concerns masking public interest factors are due process concerns masking public interest factors. Due to the multiple goals, the Chinese competition authorities are more active in their use of industrial policy on substantive decisions relative to the United States and Europe.

Keywords: China, AML, antitrust, due process, transparency, procedural fairness

JEL Classification: L40, K21