Chinese Antitrust Institutions—Many Cooks in the Kitchen

Adrian Emch, Sep 11, 2014

The Anti-Monopoly Law has been in force for over six years. When the AML was enacted in August 2007, the question of which authority would be in charge of AML enforcement was still undecided. There were three strong contenders for the job — the Ministry of Commerce, the National Development and Reform Commission, and the State Administration for Industry and Commerce. The three authorities played active roles during the normative process, probably with a view to showcasing their credentials for the enforcement authority job. MOFCOM took the lead in the drafting of the 2004 version of the draft AML and, not surprisingly, the 2004 draft explicitly mentioned MOFCOM as the sole enforcement authority. Yet, as it turned out, China would have three authorities after all. During July and August 2008—just about when the AML started to take effect—the State Council issued so-called “san ding” notices through which it gave central government ministries and equivalent organizations instructions on their jurisdiction, staff, and internal organization. Through their san ding notices, MOFCOM, NDRC, and SAIC all obtained powers to enforce the AML in a limited way. An antitrust regime with three authorities is complicated, as is the particular jurisdictional carve-up. This paper examines what issues arise with this three-headed authority structure, and how they can be addressed.

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