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Review of China’s Anti-Monopoly Law – The First Five Years (Adrian Emch & David Stallibrass, eds.))

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On the occasion of the publication of “China’s Anti-Monopoly Law – The First Five Years”, our friend Adrian Emch (Hogan Lovells Beijing) has offered us two presents: 1. A hardcopy of the book; 2. A book review by no other person than Professor Bill Kovacic! Yes, you read well, Bill Kovacic himself. This is the second time Bill appears on Chillin’Competition. Thanks to him and to Adrian for doing us this honour.

Review of China’s Anti-Monopoly Law – The First Five Years (Adrian Emch & David Stallibrass, eds. Wolters Kluwer, 2013)

By William E. Kovacic, George Washington University Law School (c)

On August 1, 2008, China’s new competition law system opened for business.  Three agencies — the Ministry of Commerce (MOFCOM), the National Development and Reform Commission (NDRC), and the State Administration for Industry and Commerce (SAIC) — began to implement China’s Anti-Monopoly Law (AML), and their work in the past five years has reshaped the global practice of competition law.

The fifth anniversary of the AML is a most suitable occasion for some stock-taking. The first five years have provided considerable experience with public and private enforcement.  China’s immense and expanding economy ensures that firms engaged in global trade must take the AML seriously.  Particularly for merger control, China is quickly acquiring the capacity to influence international competition law norms through the application of its own law.

The development of competition law in China has created a hunger for knowledge among academics, practitioners, and public officials about the AML’s origins, content, and application.  This interest has inspired the publication of a fast-growing body of books on China’s antimonopoly system.  A number of these volumes are exceptionally strong,[1] and other promising contributions are on the way.[2]

Amid the excellent modern commentary on the AML, China’s Anti-Monopoly Law – The First Five Years now stands atop the ladder.  All observers with an interest in China’s competition law system will find that this book greatly enriches their understanding of China’s competition law system.

For several reasons, First Five Years will receive, and deserves, a broad readership.  Five features of the book stand out. The first is the consistently superior quality of an exceedingly ambitious project.  The book includes 27 essays authored by a total of 41 authors.  In many instances, an undertaking of this scale suffers from unevenness in quality across the contributions.   Reasonable expectations might lead a publisher to be pleased if half of the papers are superb, the rest are merely average, and only a handful are entirely forgettable.  Through the skill and effort of its editors, Adrian Emch and David Stallibrass, First Five Years performs extremely well from the first essay through the last.  This is a formidable achievement. The perspectives in each chapter typically are candid, fresh, and insightful.  The extensive participation of Chinese authors, either writing their own chapters or collaborating with foreign specialists, ensures that the essays accurately portray China’s AML system’s broad conceptual architecture and its technical details.  Foreign competition law experience is related in a manner that  is meaningful to the Chinese context.

A second impressive contribution is the book’s examination of the institutional foundations of the Chinese competition law system.  The first four chapters of the book are rich in history and political science, and they are worth the price of admission, alone.   Huang Jong and Richean Zhiyan Li describe how the fragmentation of enforcement power among MOFCOM, NDRC, and SAIC have impeded the development of a “coherent antitrust policy.[3] Hao Qian sets out the antecedents of the AML and explains why China chose to distribute enforcement authority among three agencies.[4]  Wendy Ng considers the aims that appear to have guided public enforcement against the backdrop of goals – a diverse array of objectives featuring some fundamental internal contradictions – that motivated the AML’s adoption.[5]   Deng Fei and Gregory Leonard study how China’s economic conditions inform the AML’s application.[6]  As a group, these introductory chapters supply necessary and enlightening context for understanding the AML’s current, and they set a valuable foundation for seeing how the Chinese system might evolve in the future.

A third noteworthy element of First Five Years is its insightful treatment of important developments in doctrine and policy.  The examination of traditional enforcement focal points typically goes beyond a mere recital of activity and present informative interpretations of actions or omissions in the public enforcement program.  Good examples include the chapters on refusals to deal (and the lack of effort to date to apply this concept to expand competition in sectors controlled by state-owned enterprises);[7] vertical restraints;[8] supplier cartels and information exchanges among rivals;[9] dominant firm pricing strategies having exclusionary or exploitative effects;[10] and merger control and the treatment of joint ventures.[11]  The book’s treatment of these subjects is remarkably current, given the lag the inevitably occurs between the completion and publication of manuscripts.

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Written by Nicolas Petit

2 August 2013 at 5:04 pm

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