State Interest and the State-Centered Approach to Competition Law in China

• Date: 01 June 2020
• Author: Wendy Ng
• Published date: 01 June 2020
• DOI: 10.1177/0003603X20912889

Article

State Interest and the

State-Centered Approach

to Competition Law in China

Wendy Ng*

Abstract

There have long been concerns and speculation that China’s competition authorities are using the

Anti-Monopoly Law (AML) to pursue public interest objectives and prioritizing them over competi-

tion. This article explores whether and how public interest factors are relevant to the administrative

enforcement of the AML. It shows that, rather than public interest, it is “state interest” and China’s

state-centered approach to competition law that more aptly explains the AML and its administrative

enforcement.

Keywords

China, anti-monopoly law, competition law, administrative enforcement, public interest, state, market

I. Introduction

The question of whether China’s competition authorities

1

are using the Anti-Monopoly Law

2

(AML) to

pursue public interest objectives has been raised since the very early days of the AML. The AML

provides for the consideration of factors such as the societal public interest, economic development,

and other factors that lie beyond the economic core of efficiency, competition, and consumer welfare

upon which competition law has traditionally been focused. However, there is very little guidance in

*Melbourne Law School, University of Melbourne, Parkville, Victoria, Australia

Corresponding Author:

Wendy Ng, Senior Lecturer, Melbourne Law School, University of Melbourne, Parkville, Victoria 3010, Australia.

Email: wendy.ng@unimelb.edu.au

1. From August 2008 (i.e., when the Anti-Monopoly Law first came into effect) until March 2018, responsibility for the

administrative enforcement of the Anti-Monopoly Law was divided among three ministries: the Ministry of Commerce

(merger-related enforcement), the National Development and Reform Commission (non-merger price-related enforcement),

and the State Administration for Industry and Commerce (non-merger non-price-related enforcement). In March 2018, public

enforcement was consolidated into and under one newly established government authority, the State Administration for

Market Regulation. Additionally, public enforcement is—and always has been—divided across central level authorities and

local level authorities.

2. Anti-Monopoly Law of the People’s Republic of China (promulgated by the Standing Committee of the National People’s

Congress, August 30, 2007, effective August 1, 2008) (hereinafter AML).

The Antitrust Bulletin

2020, Vol. 65(2) 297-311

ªThe Author(s) 2020

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DOI: 10.1177/0003603X20912889

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