Book Review: China Anti-Monopoly Law Guide (CCH)

Ning Xuanfeng, China Anti-Monopoly Law Guide (CCH 2010-English version). Looseleaf, anticipated 4 updates per year. At this time China Anti-Monopoly Law Guide is only available from Wolters Kluwer Asia Pacific as a looseleaf binder shipped from China or in the Asia Pacific version of Intelliconnect. Wolters Kluwer was unable to provide pricing for the U.S. market—which they ought to have readily available. For treatments of the same subject matter available in the U.S. market, consider Kluwer Law International’s Mergers and Acquisitions in China: Law & Practice ($132.00), Springer’s forthcoming Mergers & Acquisitions in China ($59.95 estimated), and West’s Mergers & Acquisitions (Business Laws of China) ($210.00).

China’s comprehensive anti-monopoly law went into effect in 2008 after more than ten years of drafting. Since the 1980s China has enacted various piecemeal laws governing monopolies and business competition. Some of the earlier laws remain in force today, complicating the current legal regime. Further muddying the waters is the lack of definition and explanation for portions of the new law. China Anti-Monopoly Law Guide explains the new law, its application in various scenarios, and how the new system interacts with the pre-existing laws.

The Guide does a good job explaining the new law in a practical manner. The author, Ning Xuanfeng, appears to be well-qualified for the task. According to her ABA bio, Ms. Ning “was actively involved in the legislative process behind” the new anti-monopoly law. The Guide provides clear explanations, good examples, and helpful diagrams.

The Guide occasionally lacks specificity, but the author acknowledges that the law has not developed sufficiently for her to provide guidance on some points of law. For example, the law requires that merger agreements not “severely restrict competition in the relevant market.” Ms. Ning acknowledges that without government clarification she cannot define what “severely” means. Ms. Ning uses various sources where she can to illuminate the law. At one point she refers to a remark made in an interview by the Director General of the Anti-Monopoly Bureau of the MOFCOM to clarify the law’s application to state-owned industries.

The English/Chinese glossary is a helpful feature, and the English translation of the Chinese law is essential for non-Chinese speakers—presumably the translations are accurate, but I cannot confirm! I accessed the Guide using the Intelliconnect platform, which continues to have a few user-interface problems. Intelliconnect does not play well with the Firefox browser, is completely incompatible with Safari and Chrome, and functions best with Internet Explorer.

China Anti-Monopoly Law Guide is an excellent purchase for practitioners who have clients engaged in business in China or contemplating entering the Chinese market. I provide a brief summary of each chapter below for those interested.

The first chapter, “Overview of China Anti-Monopoly Law Regime,” describes anti-monopoly laws throughout the world, the purposes of the Chinese law, and its extraterritorial application.

Chapter Two, “Anti-Monopoly Enforcement Agencies,” provides descriptions and jurisdictional explanations for the various agencies, some of which were created by the earlier anti-monopoly laws. The chapter also includes a diagram of the agencies and their relationship to each another.

Chapter Three, “Applicable Subjects of the Anti-Monopoly Law,” defines businesses that are subject to anti-monopoly regulation. This chapter also discusses industry associations and public organizations like administrative authorities, which also are subject to the anti-monopoly law.

Chapter Four, “Relevant Markets,” describes how to define the relevant market for the purpose of determining whether an agreement violates the anti-monopoly law.

Chapter Five, “Monopoly Agreement,” details the various types of vertical and horizontal business arrangements that can occur.

Chapter Six, “Abuse of Dominant Market Position,” reviews the various ways a corporation can abuse its dominant market position, such as selling below cost, tying arrangements, and refusing to deal.

Chapter Seven, “Concentration of Business Operators,” explains how businesses consolidate market power (primarily through mergers and acquisitions) and the documentation, procedures, and administrative review China requires when consolidations occur within a relevant market.

Chapter Eight, “Administrative Monopoly,” discusses how the law regulates monopolies created by regional and departmental administrative authorities in China.

Chapter Nine, “Abuse of Intellectual Property Rights,” reviews how certain types of licensing agreements as well as intellectual property claims brought in bad faith can violate the law.

Chapter Ten, “Investigation of Alleged Monopoly Acts,” describes the Chinese agencies that conduct investigations of potential legal violations, the investigation process, and the penalties involved.

Chapter Eleven, “Anti-Monopoly Litigation,” discusses civil litigation permitted by the law and lawsuits companies can undertake to challenge decisions made by China at the culmination of the administrative review process.

Iantha Haight is Research Attorney and Lecturer in Law at Cornell University Law Library in Ithaca, New York.