The Enforcement of the Anti-Monopoly Law in China : An Institutional Design Perspective

The unveiling of the Anti-Monopoly Law (the “AML”) on August 30, 2007 marked a symbolic commencement of a new era of competition for China. Since the law was enacted in 2008, every move made by the Chinese antitrust authorities has been closely watched by the international community. While much attention has been devoted to second-guessing the political motives behind each of the Chinese government’s decisions, little effort has been directed to studying problems in the institutional framework for implementing the AML. This article identifies three problems in the institutional design of China’s antitrust enforcement system and calls for attention to remedy them. The first problem originates from China’s tripartite system of administrative enforcement, which will lead to many potential conflicts between the National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”), the two agencies that share enforcement responsibilities in the areas of restrictive agreements and abuse of dominant positions. While decentralization of enforcement has some modest benefits such as promoting competition among agencies and hedging the risks if any single agency fails to perform, it is imperative for NDRC and SAIC to have a work-sharing agreement that clearly delineates their rights and obligations in cases of concurrent jurisdiction. Moreover, the Anti-Monopoly Commission should set up a formal supervisory mechanism to resolve potential conflicts among the administrative enforcement agencies. Second, the concentration of authority in the Ministry of Commerce (“MOFCOM”) in the merger control regime has led to a myriad of adverse consequences including asymmetric bargaining, prosecutor bias, selective enforcement and lack of transparency. In this regard, China could learn from the E.U.’s experience and introduce more checks and balances into its merger control regime. Finally, private litigation has not been successful in China due to the challenges plaintiffs face in satisfying their burden of proof under the AML. However, private enforcement is an indispensible complement to public enforcement and should be encouraged in China