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Potential Impacts of the Proposed Anti-Monopoly Law
Wolters Kluwer
Authors: Ms Susan Ning, Partner at King & Wood Mallesons, and others
Year published: 2020
"Since the enforcement of the Anti-Monopoly Law of the People's Republic of China ('AML') in 2008, there are many related administrative law enforcement and judicial cases occurred. From 2016 to 2018, according to public information statistics, China's AML enforcement agencies investigated and handled 334 monopoly cases, including 287 cases of horizontal monopoly agreements, 12 cases of vertical monopoly agreements, and 35 cases of abuse of dominant market positions. There were 1,207 cases of concentrators. In 2019 alone, China's AML enforcement agencies investigated and dealt with 38 cases of various monopoly acts, and concluded 432 cases of concentration. On the basis of a large number of decisional experiences, the State Administration of Market Supervision ('SAMR') made a big stride in the new year of 2020 and publicly released the Anti-Monopoly Law Revised Draft for Public Comments ('Draft for Comments').

As an 'economic constitution', the AML is not only committed to maintaining market competition order, but also deeply touches the business model and business logic of enterprises. For enterprises, paying attention to the latest progress of the AML will help protect their rights and interests in the fierce market competition. In particular, the Draft for Comments significantly increased the legal liability of offenders, not only significantly increased the maximum fine for offenders, but also set up a stage for the future introduction of criminal liabilities for monopolistic behaviors, showing China's enforcement of antitrust laws are highly valued. At the same time, the Draft for Comments also integrated 11 years of law enforcement and judicial experiences, and introduced many new systems, such as investigating the legal responsibilities of operators who help organize or help other operators reach monopoly agreements, and assess whether the 15 January 2020 Potential Impacts of the Proposed Anti-monopoly Law Internet giants have market dominance from a list of suggested factors, etc. Considering that the Draft for Comments put forward higher requirements for companies’ compliance, this article aims to tailor to such needs, by focusing on the daily operations of enterprises, mergers and acquisitions, establishment of joint venture, cooperation with investigations, and dealing with administrative monopoly. It selects the main points of the Draft for Comments and tries to show the important impact of these changes on business operations and decision-making process."
This material was first published by Wolters Kluwer. Reprinted with permission.