This article reviews the development of anti-monopoly enforcement against price-related cartels since the entry into force of the Anti-monopoly Law in 2008 and critically illustrates various inconsistencies and deficiencies in its enforcement with reference to the competition law and the enforcement experience of foreign jurisdictions, i.e., the EU and US. It proceeds to argue that compared with the flexibility of decisions made on a case-by-case basis brought by Court judgments, legal certainty and predictability offered by the administrative guidelines and regulations may be a more urgent requisite for Chinese anti-monopoly enforcement against price-related cartels at this stage. A substantial part of this article is devoted to exploring four aspects which need to be clarified through the issuing of administrative regulations or guidelines, namely: (1) the boundary between the application of the Anti-monopoly Law (AML) and the Price Law to horizontal price fixing; (2) the standardized approach (the ‘object’ or ‘effect’ test) towards horizontal price fixing; (3) the gap of burden of proof between public enforcement and private litigation towards minimum and fixed RPM; and (4) the basic competition law techniques in assessing anticompetitive effects. This article further demonstrates that these clarifications may be conducive to shaping a more consistent internal approach towards public and private enforcement against price-related cartels, and constructing a solid ground for exploring unsettled substantive issues concerning minimum and fixed resale price maintenance (RPM).
World Competition