Evidencing the goals of competition law in the People’s Republic of China: inside the merger laboratory

In the analysis of competition law the most fundamental question to be asked of any regime is that of what the goals of that regime are. The goals of competition law will determine the outcomes of cases, and transparency in goals will permit robust analysis of decisions against a clear benchmark, and facilitate firms’ analysis of transactional risk. Mergers which are notified to multiple authorities provide a distinctive opportunity to compare the operation of the different regimes in respect of, in essence, the same case at the same time. Where divergent outcomes are identified these may simply indicate that in the face of complex sets of facts different conclusions are drawn, or that competitive conditions vary across the relevant regimes. More importantly, divergence may suggest that different goals are being applied. This article focusses on the approaches taken in the People’s Republic of China (PRC), the United States and the European Union – the three ‘key’ merger regimes, from each of which a clearance is a ‘must have’ – in a defined set of merger cases in which at least two of these jurisdictions applied, covering the years 2013–2016. Recognizing the limitations pertaining to any such analysis, I compare the approaches taken across this set of merger cases seeking to explain and critique any divergence, focussing in particular on the more expansive approach to merger control demonstrated here to be applied in the PRC. The focus throughout is on the operation of the substantive test(s) of merger control, which provide a focal point for testing the goals of competition law and policy