China’s antimonopoly law and recurrence to standards

Introduction The need to take into account the specific circumstances and particulars of developing countries in the design of their respective competition laws has been one of the main lessons that can be drawn from the several studies immersing into the relationship between competition and economic development.¹ China seems to dwell on the idea launched by Frédéric Jenny that “there is no one size fits all competition law.”² Not only has China inscribed provisions dealing with cartel agreements, unilateral exclusionary conduct or concentrations in its newly adopted Anti-Monopoly Law (hereinafter AML), ³ but also provisions dealing with the abuse of administrative power.⁴ Further, to allow the enforcement authorities some flexibility in the interpretation of the AML, several standards, such as “public interest, "⁵ “justifiable cause, "⁶ “national security, "⁷ “national economic development”⁸ or “other elements… (which) have an effect on the market competition”⁹ have been incorporated. The flexibility that these standards offer in terms of interpreting the AML according to the needs of the Chinese economy also has inherent dangers. The standards increase the amount of discretion of the enforcement authorities, potentially giving an incentive for firms to lobby for an outcome in favor of their interests.¹⁰ Further, these standards allow for the incorporation of different interests, such as those of consumers, small and medium sized companies, and social or even environmental interests. These different interests could complicate the decision-making process, possibly leading inexperienced enforcement authorities to conclusions that are more harmful to their economy.¹¹ On top of that bureaucrats, especially in countries that have relied on centralized planning or heavy government involvement in business affairs, are able to determine or influence the outcome of competition law cases by the use of these standards.¹².