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Academic Articles Awards > Asian Antitrust

Public Enforcement of Antitrust Law in China: Perspective of Procedural Fairness

Jet Deng and Ken Dai, Competition Policy International, August 2015

See Jet Zhisong Deng's resume See Ken Dai's resume

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Readers’ vote will close on February 15, 2016. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 5, 2016.

Some high-profile antitrust investigations such as the one against Qualcomm by the National Development and Reform Commission (“NDRC”) of the People’s Republic of China (“PRC”), initiated in November 2013 and concluded in February 2015, with a sanction order almost reshaping the global wireless patent landscape, has drawn the worldwide attention to the public enforcement of antitrust law in China. Entering into the 7th year of the Anti-Monopoly Law (“AML”) in force, the enforcement by China’s antitrust authorities has moved up a gear. NDRC and the State Administration for Industry and Commerce (“SAIC”) have both lunched substantial enforcement actions in respect of monopoly agreements and abuse of dominance. Looking at several significant antitrust investigations and reviews, questioning and criticism on the Chinese antitrust public enforcement procedures are put forward, because it seems to the public, especially to people outside China, those China’s powerful state central bodies have a fearsome reputation. It is argued that some important documents like sanction orders are not publicly issued in complete, which results in suspicion of international community on the lack of transparency in the process of Chinese public enforcement. In addition, whether all proceedings are consistent with the best practice of due process as those in the EU and the US is another point at question in respect to the Chinese public enforcement.
In this paper, detailed explanation will be presented in terms of the procedures and regulations regarding the antitrust public enforcement in China. It is worthy of attention that, the antitrust public enforcement is part of administrative enforcement in China. This means that the procedure of Chinese antitrust public enforcement has to comply with the current system of Chinese administrative laws, so it is unlikely to be completely aligned with procedures that seem to be universally applied in western jurisdictions. This may be the reason for the worldwide misunderstanding of the Chinese antitrust public enforcement. It will be also demonstrated in this paper that procedures of all investigations and reviews have been conducted strictly in accordance with Chinese law. Companies involved in the enforcement will find it difficult to challenge the conclusion under the current Chinese legal system.

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