Legitimacy and effectiveness concerns in China's private antitrust enforcement regime : a comparative analysis with the EU and US regimes

Wang, Jing and Cahill, Dermot (2023) Legitimacy and effectiveness concerns in China's private antitrust enforcement regime : a comparative analysis with the EU and US regimes. Journal of Antitrust Enforcement, 11 (3). pp. 454-490. ISSN 2050-0688 (https://doi.org/10.1093/jaenfo/jnac029)

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Abstract

The year 2007 heralded a major advance in China’s entry to the global economy’s rules-based marketplace. Its Anti-MonopolyLaw 2007 (AML 2007) taking inspiration from European Union (EU) antitrust concepts contained internationally familiar key antitrust prohibitions. It appeared to satisfy key benchmarks, which any credible antitrust enforcement system should exhibit, namely Legitimacy and Effectiveness. However, in this original contribution, analysing 14 years of leading case law, the authors identify several key persistent Legitimacy and Effectiveness issues which arise when private parties attempt antitrust enforcement through the courts. On key issues such as: (i) Compensation awards inadequacy; (ii) Lack of rights for indirect purchasers; (iii) Absence of a passing-on defence; and (iv) Limitations of collective litigation mechanisms, deficiencies arising in each of these four areas are identified and analysed. Pathways to reform are set out. Comparative analysis with the corresponding EU and US jurisprudence is undertaken throughout, to illuminate the contrast in treatment for antitrust litigants facing similar antitrust situations. Recently enacted reform legislation (AML 2022) does not remedy the antitrust protection concerns identified by the authors. Private parties seeking antitrust redress in China will therefore continue to have weaker remedies in antitrust enforcement cases, in contrast with their EU and US counterparts. The absence of comprehensive reform means that Legitimacy and Effectiveness deficiencies will continue to undermine legal protection for China’s private antitrust enforcement litigants. Furthermore, the research demonstrates how norm adoption on its own cannot raise the propect of better outcomes, unless accompanied by corresponding evolution in the provision of more robust enforcement rights and remedies for antitrust litigants, as well as evolution in judicial interpretation to support antitrust norms acceptance.

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