It is my pleasure to find some colleagues interested in Chinese AML issues. I would like to discuss with you the functions of the regulatory institutions and the possible issues surrounding investigation and litigation.
Presently, the profile of MOFCOM (Ministry of Commerce) is clear, however that of NDRC (National Development and Reform Commission) and SAIC (State Administration for Industry and Commerce) have not come into being.
Meanwhile, we could assure that the fundamental change is that SAIC will not be involved in the process of the notification of concentration and its investigation, except involving the national security ingredients.
From this angle, the anti-monopoly bureau of MOFCOM will have full and sole responsibility to deal with the concentration issue, and its real function of the enforcement of AML will become limited, despite the huge number of notification cases.
SAIC, the department which has a vague image with respect to AML and always lags behind MOFCOM will assume more and more essential responsibility in the field of AML. It will be in charge of the investigation and punishment on monopoly agreement, abuse of dominant position and administrative monopoly.
From my viewpoint, according to the Three Decisions, most of the cases dealt by MOFCOM concern the concentration notification and ratification. In sum, it is about normal procedure. SAIC will face the unprecedented challenge. Based on its experience, SAIC should gird itself for the abstract and complicated issues on the definition of relevant mark and dominance, harsh antagonist including giant enterprises and state-owned enterprise, and some conflicts between the AML and China’s Against Unfair Competition Law.
As the position of NDRC is superior to SAIC, how to harmonize their actions regarding monopoly behaviors is problematic. Theoretically, NDRC is responsible for monopoly matters relating to price, however, such scope is ambivalent. Monopoly high price, price cartel, predatory price, administrative monopoly, ect. All of these matters have some connection with price issues more or less. According to news reports, SAIC will construct a new bureau, namely anti-monopoly bureau, though the first problem for this new department is not its human resource and practical stipulation, is how to distinguish the bound of NDRC and SAIC.
From the above-mentioned view, I am curious about media reports concerning the Microsoft case. Some reports stated MOFCOM had accepted the complaining letter about Microsoft, which I think is mistaken. If any regulatory department want to initiate the investigation on Microsoft, it should be SAIC or NDRC, not MOFCOM.
As far as private litigation is concerned, the Supreme Court of China has not begun to draft its explanation for the Chinese AML. Without such explanation, the local Chinese courts in the different instances cannot define the cause, the scope of damage, the qualification of plaintiff, and amount of compensation in civil litigation. The burden is equally placed upon Chinese lawyers. At present, it is hard to say China has actual AML/Anti-trust litigation in Chinese courts. Perhaps some cases were accepted, but considering their nature, they are administrative cases, not civil cases. Regardless, the curtain is up, let us wait to see the further process of China’s AML for the benefit of Chinese Courts and Chinese Lawyers alike.