Delayed leniency applications: The unfortunate but predictable outcome of the flexible leniency policies under the chinese antimonopoly law

Leniency has become important for the enforcement of competition law against illegal cartels. When the Chinese Anti-Monopoly Law was drafted, the possibility to give lenient treatment to an infringer coming forward with information on the illegal cartel was inscribed in Article 46. In their elaboration of this general leniency provision, NDRC and SAIC created two leniency policies, one of price related and one for non-price related cartels. These leniency policies empowered the enforcement agencies to take decisions almost as they like. Flexible leniency policies, as experience in the United States and the European Union has shown, do not always lead to a favourable outcome in terms of detecting cartels independent from investigations from enforcement agencies. The European experience suggests that a flexible leniency policy will still trigger leniency applications, but that they will always follow the investigations by another enforcement agency. The Japanese experience has taught that this outcome may even not be achieved by a clear and transparent leniency policy. Despite that outcome, the Japanese experience shows that the leniency applications will follow almost directly the foreign investigations. Combining these experiences, the chapter suggests that the Chinese leniency policies will be used. However, due to the uncertainty, the leniency applications will be delayed until it is almost certain that the firm will be punished.