The political economy of China's Anti-Monopoly Law

© 2014 Dr. Wendy NgThe Anti-Monopoly Law (‘AML’), China’s primary competition law statute, was enacted in 2007 as part of China’s efforts to establish a legal system to support its socialist market economy. The existing literature on the AML generally focuses on comparing the AML to the competition laws and norms adopted by well-established competition law jurisdictions such as the United States and the European Union, and adopts legal and economic methods to analyse the AML. Commentators recognise that the societal context influences the AML and draw upon this context to inform their critique. However, the depth and breadth of their exploration of this context varies. This thesis develops the existing literature in two ways. First, it uses a political economy approach to engage in a detailed and empirically informed examination of the societal context surrounding the AML. This political economy approach is based on a “supply and demand” framework and focuses on understanding the identity, interests, incentives, interrelationships, and relative powers of actors on the “demand” and “supply” sides of the AML. Second, it explores why, how, and the extent to which this societal context has influenced, and continues to shape, the introduction and operation of the AML. These findings are also used to evaluate the concerns and criticisms made by commentators in the existing literature. English and Chinese language primary and secondary sources, interviews, and case studies have been used to inform the research. Several key observations about the dynamics of competition law and policy in China derive from this analysis. Struggles amongst various government authorities for the power to enforce the AML and the balancing of the dual roles of the state, as a participant in the market and as competition regulator, in China’s socialist market economy have significantly influenced the enactment, implementation, and enforcement of the AML. The introduction and operation of the AML have also been constrained by the consideration of other government laws and policies, the level of competition law expertise and knowledge within the government and business community, and the position of the AML enforcement authorities within the broader government bureaucracy. These observations provide insight into how and why certain outcomes are reached under the AML. These findings also corroborate many of the criticisms and concerns voiced by commentators in the existing AML literature, and explain why other claims need to be qualified