Competition Law International (CLI)
About Competition Law International
Competition Law International is the journal of the Antitrust Section of the IBA. It provides an insight into international competition law issues with articles that are of practical interest. Published twice a year, the journal reaches over 1,400 competition law practitioners worldwide.
Recent articles have included:
- The United States Federal Trade Commission: continuity and challenges
- The new French competition law enforcement regime
- Antitrust in China - a constantly evolving subject
- Antitrust issues involving acquisitions of financially distressed companies
Subscriptions
Members of the Antitrust Section receive Competition Law International as part of their membership. PDF-only subscriptions are also available to non-members. Please email editor@int-bar.org to order.
ISSN 1817 5708
Pricing: £76 per issue
£153 per year, two issues per year
Five per cent agency discount available on annual subscriptions
In October 2020, SK hynix announced it would acquire Intel’s NAND memory and storage business to enhance the competitiveness of its NAND flash solutions. The deal would make SK hynix second only to Samsung among the world’s largest NAND memory makers. A number of competition authorities reviewed the deal. In May 2021, the European Commission and Korea’s antitrust agency cleared the deal without any issues. The UK’s Competition and Markets Authority followed suit and found that there would be ‘strong remaining competitors’ who had their own plans to ‘expand their capacity’. The Committee on Foreign Investment in the United States (CFIUS) also weighed in with approval. China was the final antitrust hurdle. As with many other semiconductor reviews before it, the State Administration for Market Regulation (SAMR) approved the SK hynix/Intel deal a year later but imposed a range of behavioural conditions to address competition concerns (not identified elsewhere) and security of supply.
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Between a rock and a hard place: when China’s merger commitments to supply meet US export controls -
This article reviews recent US export control rules impacting China and relevant Chinese merger control practice, and considers the implications of the regulatory tension between the two regimes for parties involved in a China merger review or subject to China merger remedies.
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This article summarises the Chinese decisions of intervened cases to identify the key economic tools used by Chinese regulators and elucidate the Chinese merger review process more generally.
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This article provides a brief introduction on the procedural changes before seeking to provide a dialectical and nuanced perspective on the potential influence these changes will bring to multiple stakeholders of China merger control regime. This includes the notifying parties, the antitrust authorities (the State Administration for Market Regulation or SAMR), and others.
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In mid-2014, China introduced a simplified proceeding for mergers that are not expected to harm competition or change the market structure in China. This is the ‘fast track’ merger review process, which is similar to the ‘short form’ proceedings in the European Union and other jurisdictions. In China, the simplified proceeding will apply where transactions that meet at least one of six criteria.
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China’s Anti-Monopoly Law (AML) has only been enforced for 15 years, but despite this relatively short timeframe, China has not shied away from intensive antitrust enforcement. The authorities have also extensively engaged in drafting AML implementing regulations or guidelines. Within this process, it has been gradually perceived that the AML adopted in 2007 was no longer ‘fit’ for a changing landscape, particularly after more than a decade of capacity building. As a result, a revision of the AML was initiated in 2019 and was finalised on 24 June 2022 (the New Law). The New Law brings in total 38 amendments, including 13 newly added articles and 25 revised articles. All those amendments can be divided into two types: minor changes and significant changes. This article reviews those amendments and attempts to explain the reasons behind them, as well as their significance and problems for antitrust enforcement in the future.
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A 2022 amendment made minor modifications to China’s Anti-Monopoly Law (AML), responding in part to challenges triggered by the digital economy. The amendment directly prohibits undertakings from using data, algorithms, technologies, advantage in capital and rules to engage in anti-competitive conduct. Indirectly, the amendment introduces a new legislative purpose (‘encouragement of innovation’), a classification and grade mechanism to merger control, an explicit provision against hub-and-spoke agreements, and requires notification of problematic mergers below the notification thresholds. The Chinese competition authorities should revise their supporting rules, not overlook the positive roles played by capital, think twice before investigating exploitative abuses of dominance, and better coordinate with other administrative authorities.
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China’s Anti-Monopoly Law (AML) targets three categories of anti-competitive conduct which form part of most, if not all, antitrust laws globally. In addition, in consideration of China’s unique circumstances as an economy transitioning from a planned economy to a market economy, the legislator also included a prohibition of anti-competitive conduct not only upon market players, but also on government bodies. As a result, the AML contains a chapter on the ‘abuse of administrative power to exclude or restrict competition,’ which is more colloquially referred to as ‘administrative monopoly’ conduct.
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As the world’s largest mobile phone terminal manufacturer and consumer market, China has emerged as one of the jurisdictions with the highest number of disputes involving communication standard essential patents (SEPs). High-profile cases, such as Huawei v InterDigital (fair, reasonable, and non-discriminatory (FRAND) rate determination), Huawei v Conversant (anti-suit injunction) and OPPO v Sharp (global rate setting), have attracted global attention. The author of this article shares their thoughts and experience in representing clients in the three of these cases.
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How to order
Members of the Antitrust Section receive Competition Law International as part of their membership. PDF-only subscriptions are also available to non-members. Please email editor@int-bar.org to order.
ISSN 1817 5708
Pricing: £76 per issue
£153 per year, two issues per year
Five per cent agency discount available on annual subscriptions
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Please send details of books for review to editor@int-bar.org.
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Disclaimer: The views expressed in journals, newsletters and papers are those of the contributors, and not necessarily those of the International Bar Association