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2021 | OriginalPaper | Chapter

The Amendment of Anti-Monopoly Law of Merger Remedies: Based on the Empirical Analysis in China

Author : Chenying Zhang

Published in: Takeover Law in the UK, the EU and China

Publisher: Springer International Publishing

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Abstract

Since the implementation of the Anti-Monopoly Law in 2008, China has implemented a review system for the eligible concentration in which structural remedies or behavioral remedies are imposed when certain concentrations are reached by way of restrictive conditions. This is a common principle in almost every jurisdiction, but China’s practice shows that behavioral remedies are used more often than structural remedies, which is different from EU or US practice. Based on the interpretation of the Chinese system and the logic of remedy rules, this article analyses all the remedy cases in China, and makes suggestions for improvement.
Footnotes
1
An exception is Hong Kong, where, in principle, no deal other than those in the field of telecommunications is subject to operator concentration review.
 
2
The thresholds for regulating the mergers among the undertakings are different among various jurisdictions, dynamic or static. Even though taking the sales in the previous year as the criterion, the baselines vary significantly among the jurisdictions. Although this is an important consideration in amending the Anti-monopoly Law in China, it is not of focus of this Paper, so it is not discussed in detail herein.
 
3
See Wu and Liu (2012), p. 430.
 
4
See Davies and Lyons (2007), pp. 13–17; Kwoka and Moss (2012), pp. 979–1011.
 
5
See Article 3 of Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation) promulgated by MOFCOM.
 
6
These three are ministry-level administrative agencies. Each has a broad range of mandates in performing other functions. Antitrust reviews and investigations are carried out by their respective antimonopoly bureaus, i.e., the Price Supervision and Antimonopoly Bureau of NDRC, the Antimonopoly Bureau of MOFCOM, and the Antimonopoly and Anti-Unfair Competition Bureau of SAIC. As is commonly done in antitrust writings relating to China, we use NDRC, MOFCOM and SAIC as the acronyms for their antitrust enforcement bureaus.
 
7
This Figure is drawn from The US-China Business Council’s report, “Competition Policy and Enforcement in China,” (2014), p. 4.
 
8
See “Interim Measures for Investigating and Handling the Failure to Report the Concentration of Undertakings,” (2011).
 
9
See “Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation)” (2014).
 
10
MOFCOM Announcement No. 77 of 2009.
 
11
MOFCOM Announcement No. 53 of 2010.
 
12
Qiu (2009), pp. 96–100.
 
13
MOFCOM Announcement No. 82 of 2009.
 
14
See MOFCOM Announcement No. 64 of 2015.
 
15
See MOFCOM Announcement No. 22 of 2009.
 
16
See MOFCOM Announcement No. 46 of 2014.
 
17
The Ministry of Commerce issued three administrative penalty decisions, including two against Western Digital, i.e., S.F.H [2014] No.786 and S.F.H [2014] No.787, and one against Thermo Fisher Scientific, i.e., S.F.H [2018] No.11.
 
18
See Easterbook (1984), pp. 1–40.
 
19
Hylton (2009), p. 105.
 
20
See Article 5 of Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation): The MOFCOM shall, in a timely manner, put forward that a concentration might preclude or restrict competition and give the reasons. Based on this, the reporter may propose additive restrictive conditions.
 
21
Li and Ma (2016), pp. 37–39.
 
22
Davies and Lyons (2007), pp. 13–17; Kwoka and Moss (2012), pp. 979–1011.
 
23
Merger remedies review project: report for the fourth ICN annual conference (2005).
 
24
See The Ministry of Commerce of the People’s Republic of China, Article 3 of the Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation).
 
25
European Commission, Commission Notice on remedies acceptable under Council Regulation (EC) No. 139/2004 and under Commission Regulation (EC) No. 802/2004, OJ C 267, 22, October 2008.
 
26
MOFCOM Announcement No. 41 of 2015.
 
27
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, October 2004, pp. 22–26.
 
28
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, June 2011, pp. 12–18.
 
29
Bureau of Competition of the Federal Trade Commission, Negotiating Merger Remedies, https://​www.​ftc.​gov/​system/​files/​attachments/​negotiating-merger-remedies/​merger-remediesstmt.​pdf.
 
30
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, October 2004.
 
31
Ibid.
 
32
See Fazio (2013), pp. 5–7.
 
33
See Makan Delrahim (2018), p. 7.
 
34
See Wang et al. (2013), p. 10.
 
35
See Commission Notice on Remedies acceptable under Council Regulation (EEC) No. 4064/89 and under Commission Regulation (EC) No. 447/98, 2001/C 68/03; No. 139/2004 and under Commission Regulation (EC) No. 802/2004, OJ C 267, 22 October 2008.
 
36
See Sorinas and Jorns (2009), pp. 9–13.
 
37
Competition Commission (2008), Merger Remedies: Competition Commission Guidelines, pp. 14–15.
 
38
See OECD (2011), p. 207.
 
39
See Han (2014), p. 192.
 
40
See OECD(2011), p. 46.
 
41
See Baer (1999), p. 4.
 
42
See Rey (2004), pp. 129–134.
 
43
See Papandropoulos and Tajana (2006), p. 443.
 
44
See U.S. Department of Justice Antitrust Division (2011) Antitrust Division Policy Guide to Merger Remedies, pp. 5–7.
 
45
See Dong (2008), p. 63.
 
46
See Wu and Liu (2012), p. 437.
 
47
MOFCOM Announcement No.43 of 2015.
 
48
See Cary and Bruno (1997), p. 875.
 
49
See Articles 46 and 47 of Anti-Monopoly Law of China currently in effect.
 
Literature
go back to reference Cary G, Bruno M (1997) Merger remedies. Adm Law Rev 49:875–888 Cary G, Bruno M (1997) Merger remedies. Adm Law Rev 49:875–888
go back to reference Davies S, Lyons B (2007) Mergers and merger remedies in the EU. Edward Elgar Publishing Limited, Cheltenham CrossRef Davies S, Lyons B (2007) Mergers and merger remedies in the EU. Edward Elgar Publishing Limited, Cheltenham CrossRef
go back to reference Dong H (2008) Remedies in the anti-monopoly review on concentration of undertakings. Price Theory Pract 7:63–64 Dong H (2008) Remedies in the anti-monopoly review on concentration of undertakings. Price Theory Pract 7:63–64
go back to reference Easterbook F (1984) The limits of antitrust. Tex Law Rev 63:1–40 Easterbook F (1984) The limits of antitrust. Tex Law Rev 63:1–40
go back to reference Fazio C (2013) Merger remedies: the greater use by the DOJ and FTC of an expanding toolkit. Aspatore Books Fazio C (2013) Merger remedies: the greater use by the DOJ and FTC of an expanding toolkit. Aspatore Books
go back to reference Han W (2014) Introduction to and comment on 2011 merger remedy forum of OECD. Econ Law Rev 1:191–207 Han W (2014) Introduction to and comment on 2011 merger remedy forum of OECD. Econ Law Rev 1:191–207
go back to reference Hylton E (2009) Antitrust law: economic theory and common law evolution. Translated by ZHAO Ling. Peking University Press, Beijing Hylton E (2009) Antitrust law: economic theory and common law evolution. Translated by ZHAO Ling. Peking University Press, Beijing
go back to reference Kwoka J, Moss D (2012) Behavioral merger remedies: evaluation and implications for antitrust enforcement. Antitrust Bull 57(4):979–1011 CrossRef Kwoka J, Moss D (2012) Behavioral merger remedies: evaluation and implications for antitrust enforcement. Antitrust Bull 57(4):979–1011 CrossRef
go back to reference Li J, Ma X (2016) The composition of operation mechanism of operator concentration remedies Price Theory Pract 12: 37-39 Li J, Ma X (2016) The composition of operation mechanism of operator concentration remedies Price Theory Pract 12: 37-39
go back to reference Papandropoulos P, Tajana A (2006) The merger remedies study: in divestiture we trust? Eur Compet Law Rev 8:443–454 Papandropoulos P, Tajana A (2006) The merger remedies study: in divestiture we trust? Eur Compet Law Rev 8:443–454
go back to reference Qiu C (2009) Discussions on the system of conditional approval over operator concentration in the anti-monopoly law. Res Rule Law 10:96–100 Qiu C (2009) Discussions on the system of conditional approval over operator concentration in the anti-monopoly law. Res Rule Law 10:96–100
go back to reference Rey P (2004) ‘Economic analysis and the choice of remedy’, merger remedies in American and European Union Competition Law. Edward Elgar Publishing, Cheltenham Rey P (2004) ‘Economic analysis and the choice of remedy’, merger remedies in American and European Union Competition Law. Edward Elgar Publishing, Cheltenham
go back to reference Sorinas S, Jorns C (2009) European Union: EU merger remedies. Int Financ Law Rev: 9–13 Sorinas S, Jorns C (2009) European Union: EU merger remedies. Int Financ Law Rev: 9–13
go back to reference Wang EX-R, Tsai J, Chan S (2013) Merger remedies with Chinese characteristics. CPI Antitrust Chronicle 8(2):1–13 Wang EX-R, Tsai J, Chan S (2013) Merger remedies with Chinese characteristics. CPI Antitrust Chronicle 8(2):1–13
go back to reference Wu Z, Liu X (2012) Theory and practice of the anti-monopoly review system for mergers and acquisitions. Law Press, Beijing Wu Z, Liu X (2012) Theory and practice of the anti-monopoly review system for mergers and acquisitions. Law Press, Beijing
Metadata
Title
The Amendment of Anti-Monopoly Law of Merger Remedies: Based on the Empirical Analysis in China
Author
Chenying Zhang
Copyright Year
2021
DOI
https://doi.org/10.1007/978-3-030-72345-3_8

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