ANTITRUST LAWjouRNAL After China began its historic transition from a centrally planned economy to a market economy in the late 1970s, it gradually came to realize that good competition policies would be of vital importance to its economic growth. As a result, China began experimenting with reform measures and enacting antitrust laws and regulations aimed at promoting competition in its economy. At first, China adopted a piecemeal approach, passing laws and regulations dealing with isolated competition issues as they arose. As competition issues became increasingly prominent, China recognized the importance of having a comprehensive antitrust law. In 1994, China began its efforts to enact the Anti-Monopoly Law (AML), China's first comprehensive antitrust legislation. Thirteen years later, on August 30, 2007, China's National People's Congress (NPC) finally adopted the AML. 2 The AML has provisions found in most other countries' antitrust laws, such as the prohibition of horizontal agreements and abuse of market power, and requirements for pre-merger notifications and reviews. The AML also contains many provisions not typical of antitrust laws, such as provisions regarding State-Owned Enterprises (SOEs) in important economic sectors, trade associations, and monopolies created by government agencies.
This paper reviews China's recent efforts to enact a competition policy (antitrust) law. We focus on three issues: (1) What is the substance of the proposed law, and how does it differ from existing antitrust law in other countries, (2) How will the law be implemented or enforced, and how will those who must implement this law interpret their mandate, and (3) What will be the likely effects of this law given China's unique history and cultural heritage. We emphasize China's economic, legal and regulatory contexts in which an antitrust law may be enforced. Our central focus is the problem of establishing a substantive and procedural legal framework that is incentive-compatible with economic efficiency and growth. The policy debate on antitrust within the Chinese government is not public. An unofficial draft of the proposed law was widely circulated outside China in 2003 and was the subject of a public commentary by the American Bar Association. A slightly revised
The growing trend of corporations imposing restrictions on suppliers, contractors, and customers beyond the requirements of existing laws requires rethinking the nature and impact of corporations’ private regulatory power. This trend, which this Article refers to as “Corporations as Private Regulators” (CPR), represents a paradigmatic shift in how corporations participate in the making of public policies. This Article conceptualizes the corporate CPR power as the exercise of a right of refusal to deal with counterparties. This right of refusal could be theorized as a new form of property right, whose allocation has important implications for both rights and wealth. The Article further explores the possible legal responses to CPR under various approaches, including the status quo approach, the ad hoc approach, the antitrust approach, the general CPR law approach, the property approach, and the constitutional approach. Finally, the Article analyzes the advantages and disadvantages, as well as the theoretical and practical implications, of each approach. The insights garnered through these inquiries lay the foundation for systematically tackling the CPR power.
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