The Enforcement of Merger Control in China: A Critical Analysis of Current Decisions by MOFCOM
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The Enforcement of Merger Control in China: A Critical Analysis of Current Decisions by MOFCOM Yo Sop Choi • Sang Youn Youn
Published online: 19 November 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
Abstract The Anti-Monopoly Law in China took effect in 2008, and it is unquestionable that it has led to a meaningful transformation of economic policy. Chinese competition law has been understood as a constitution for free and fair competition and also an important means of creating a price-driven market economy. In particular, since China is one of the world’s largest economies, its adoption of a competition law has drawn the attention of trading partners and large multinational enterprises. When examining the current enforcement of competition law in China, it is noteworthy that most cases involve the enforcement of merger control rather than cartels or abuse of market dominance, and the number of merger cases continues to increase significantly. Therefore, understanding merger control is important for an overall understanding of competition policy in China. The Chinese competition regime has improved the techniques for merger assessment, but it also appears to have some problems due to a lack of experience. This article aims to introduce and analyse the recent enforcement and development of Chinese merger control. It also acknowledges fundamental differences between the objectives of Chinese competition law and the objectives of competition law in Western countries, and explains how this eventually results in dissimilar outcomes. Lastly, this article provides proposals for establishing a better merger policy based on the competition-priority principle rather than socio-political values. Y. S. Choi (&) Ph.D. in Law (University of Glasgow); Assistant Professor College of Social Sciences at Hankuk University of Foreign Studies, Room Number 532 Faculty Office Building 1, Hankuk University of Foreign Studies, 107 Imun-ro, Dongdaemun-gu, Seoul 130-791, South Korea e-mail: [email protected] S. Y. Youn Ph.D. in Law (Renmin University of China); Researcher Institute of Chinese Studies at Hankuk University of Foreign Studies, 1006 Main Building HUFS, 270 Imun-dong, Dongdaemun-gu, Seoul, Republic of Korea e-mail: [email protected]
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The Enforcement of Merger Control in China
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Keywords Comparative competition law Chinese competition law Merger control MOFCOM Google/Motorola
1 Introduction The first comprehensive competition law in the People’s Republic of China (China), the Anti-Monopoly Law (hereinafter referred to as the AML or the Act),1 entered into force in August 2008. There is no doubt that this legislation suggests a drastic transformation of Chinese economic policy. The AML has been understood as a constitution for free and fair competition in China, and also as evidence of an important movement from a state-planned economy towards a price-driven market economy.2 In particular, since China is one of the largest economies in the world and has emerged as a
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