Incentives and China's New Antimonopoly Law - SSRN papers

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THE PEOPLE'S REPUBLIC OF CHINA recently enacted a new, comprehensive Anti- monopoly Law (AML) that will go into effect in. August 2008. As written, the ...
Incentives and China’s New Antimonopoly Law BY FEI DENG AND GREGORY K. LEONARD

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HE PEOPLE’S REPUBLIC OF CHINA recently enacted a new, comprehensive Antimonopoly Law (AML) that will go into effect in August 2008. As written, the AML is largely consistent with the antitrust laws of the United States and European Union, with a few exceptions.1 However, the AML only articulates the broad principles that will guide antitrust enforcement in China. The details of how antitrust enforcement will actually be implemented were left for future development. Thus, a number of questions remain open, some of which arise out of the idiosyncratic nature of the Chinese political and economic environment. Who will be responsible for antitrust enforcement? Will the Chinese antitrust enforcers be able to cope with “administrative monopolies”? Will the AML be used to disadvantage multinational companies rather than to enhance competition? To what extent will the AML and its penalties deter companies from engaging in anticompetitive conduct? Central to the answer to each of these questions are the underlying incentives—to companies and the Chinese antitrust enforcers—that have either been created by the AML or were a motivation for developing the AML in the first place.

Who Will Be Responsible for Antitrust Enforcement? The answer to this question is in particular flux at this time because the composition of the primary antitrust agency is unknown, and enforcement authority under the AML may end up being highly fragmented among different governmental bodies in addition to the antitrust agency. Prior to passage of the AML, China had a hodgepodge of laws with various antitrust provisions, and three different government agencies had responsibility for enforcement of Fei Deng is a Consultant at NERA Economic Consulting. Gregor y K. Leonard is a Vice President at NERA Economic Consulting and an Associate Editor of A N T I T R U S T . The authors thank Alan Cox, Steve Harris, and Yizhe Zhang for their helpful comments.

these laws. The State Administration for Industry and Commerce (SAIC) addressed certain types of monopolization conduct, the Ministry of Commerce (MOFCOM) was responsible for merger control involving multinational companies, and the National Development and Reform Commission (NDRC) enforced prohibitions against price fixing. Officials from MOFCOM and SAIC were heavily involved in the drafting of the AML, and both agencies lobbied to become the agency responsible for enforcing the new law. This political battle between the agencies has not been resolved; the AML is silent about the ultimate composition and structure of the Antimonopoly Enforcement Agency (AMEA), the agency that will handle day-to-day enforcement. Our understanding is that it is likely that all three agencies will continue to play a role in enforcement at the AMEA. In addition to the undefined AMEA, there will be an oversight body, called the Antimonopoly Commission, which will consist of officials from various government agencies. It is important to note that these officials may not all have antitrust expertise. Beyond the uncertainty about the exact composition of the AMEA, the AMEA’s authority may end up being fragmented or weakened, given certain provisions of the AML. First, Article 7 of the AML appears to state that antitrust enforcement in certain industries might be conducted, not by the AMEA, but by the regulatory agencies that are responsible for overseeing them.2 Article 7 states that: With respect to industries that are controlled by the stateowned economy and that are critical to the wellbeing of the national economy and national security, as well as industries in which exclusive operation and exclusive sales are the norm of business in accordance with the law, the State shall protect the lawful business activities of the undertakings in such industries. The State shall regulate and supervise the business activities of such undertakings and regulate the prices of commodities and services provided by such undertakings in accordance with the law so as to protect the interest of the consumers and to promote technological progress.

Then, Article 51 of the AML suggests that regulatory agencies that are subject to other laws will not be subject to the AML: If there are other provisions in laws and administrative regulations concerning the regulation of actions eliminating or restricting competition that are taken by administrative agencies and organizations empowered by laws and regulations to have the function of administrating public affairs that abuse their administrative powers, such other provisions shall prevail.

Taking Article 7 together with Article 51, the AML could be read to say that regulatory agencies can effectively exempt companies in certain industries from the AML. Indeed, regulatory agencies are thought to have resisted the idea of giving the AMEA jurisdiction over competition issues within their industries.3 S P R I N G

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The potentially exempted companies fall into several categories. The first category is comprised of companies in industries that are “critical to the well-being of the national economy” and that are controlled by the government. This may include state-owned enterprises (SOEs) in the petroleum industry, for example. The second category consists of companies in industries that are “critical to national security” and controlled by the government. This may include SOEs in high-tech industries. The third category consists of companies in industries where “exclusive operation and exclusive sales are the norm” (which we interpret to mean those industries where the government has granted monopoly status), even if the companies are not government owned or controlled. Article 10 of the AML creates further potential for fragmentation of antitrust enforcement. Under Article 10, the AMEA can delegate its enforcement powers to government authorities in the provinces, autonomous regions, and municipalities. The various players involved in antitrust enforcement face different types of incentives. This makes it difficult to predict how antitrust enforcement will be conducted. The officials on the Antimonopoly Commission, who will be drawn from various agencies and may not all have antitrust experience, may be more subject to regulatory capture and to ideological, political, and other influences that may lead the Commission to push the AMEA to deviate from competition as a goal. The officials of the AMEA, on the other hand, are likely to be driven more by concerns about career advancement and, by their antitrust backgrounds, to focus on competition as a goal. Finally, to the extent that regulatory agencies engage in antitrust enforcement, they are subject to potential regulatory capture, ideological beliefs, and SOE profit incentives. As discussed in further detail below, these institutional factors may create incentives for some government authorities to misuse the AML. Will the AMEA Be Able to Deal with “Administrative Monopolies”? The AML addresses the issue of governmental bodies favoring certain companies to the detriment of others, but the AMEA may not have the political power to overcome the incentives that these governmental bodies face. The term “administrative monopoly” is used to describe the situation where a governmental body has used its regulatory power to confer a competitive advantage on favored companies. The governmental body typically achieves this outcome by creating barriers to entry or raising the costs of the favored companies’ rivals. A local government might deny a potential entrant the necessary permits to operate in its local area in order to protect a favored local firm from competition, or the local government may require local firms to purchase their supply of an input from a favored local firm (thereby foreclosing non-local firms from the local market). This particular form of administrative monopoly is referred 7 4

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to as “regional blockage.” A well-known example is provided by beer brands in China, which are largely restricted to distribution in their home provinces because of barriers to entry raised by the local governments in other provinces.4 Local governments are driven to engage in such conduct by the financial incentives they face. In particular, a large share of local government tax revenue is derived from local firms. Protecting local firms from competition protects the local government’s tax revenue base. In addition, some SOEs are owned by local governments, giving them a profit incentive to protect these SOEs from competition. Finally, the career development of local government officials may be enhanced if local businesses are thriving. Conversely, their career development may be harmed if they allow firms to fail, particularly if the resulting local negative economic effects lead to social unrest. Given these incentives, local governments cannot be relied upon to give up voluntarily the practice of administrative monopoly. Yet, such conduct is anticompetitive. This was a central concern of the drafters of the AML, who were largely pursuing competition as the goal of antitrust policy. However, they were opposed politically by government agencies whose economic interests led them to favor administrative monopolies. After substantial debate, the final version of the AML contains an entire chapter (Chapter Five) devoted to prohibiting regional blockage and administrative monopoly. Governmental bodies are prohibited from requiring purchases from a designated firm (Article 32), raising barriers to the flow of products between areas (Article 33), imposing discriminatory requirements on bidders for government projects (Article 34), raising barriers to entry for non-local firms (Article 35), and engaging in other anticompetitive acts. Unfortunately, however, the focus of Chapter Five appears to be more on regional blockage by local governments than on actions by the regulatory agencies of the central government to protect SOEs from competition.5 The question becomes whether the AMEA will be able to enforce Chapter Five effectively against administrative monopolies.6 Given that career concern incentives are likely to dominate for AMEA officials, they will have a strong commitment to attempt to break administrative monopolies. However, it remains to be seen whether they will have adequate legal tools and political power to do so. Article 51 of the AML states that, where a governmental agency has engaged in anticompetitive conduct, the AMEA may only report its findings to a superior agency; it is that superior agency’s responsibility to put an end to the inferior agency’s anticompetitive conduct. This would seem to provide only a feeble enforcement framework for the AMEA to break administrative monopolies. To make matters worse, the central government of China (of which the AMEA will be a part) has surprisingly weak control over the actions of local governments.7 Another potential issue is that Article 7 could be read to limit the application of Chapter Five. Whenever an admin-

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istrative monopoly involves a company that is controlled by the government and that is critical to the national economy or the national security, or a company that has been granted a monopoly, it may be exempt from the AML under Article 7. For example, the government has authorized only two firms (both SOEs) to sell gasoline.8 This decision may have been motivated by profit incentives (i.e., to protect the SOEs from competition) or by national security concerns. In any event, authorizing only two firms to sell this product would appear to be a potential violation of Article 32’s prohibition against requiring purchases from designated firms. However, petroleum almost surely fits under Article 7’s exemption, making relevant regulatory agencies, rather than the AMEA, responsible for antitrust enforcement in this industry. Thus, the AMEA is unlikely to be able to break this administrative monopoly even if it were found to be anticompetitive. Will the AML Be Used to Disadvantage Multinational Firms? To some extent, government officials in China may be expected to enforce the AML more harshly against foreignbased multinationals, as compared with Chinese companies. However, this outcome is not certain. Antitrust enforcers anywhere can sometimes be motivated to compromise the goal of enhancing competition for a number of reasons, including ideological beliefs, special interest politics, regulatory capture, “public interest” concerns, or economic incentives. Although these problems have been largely avoided in the United States,9 even here ideological beliefs have occasionally derailed the goal of maximizing competition, such as when antitrust enforcers have sought to protect small companies from competition from larger, more efficient companies.10 In addition, special-interest politics has led Congress at times to grant exemptions and immunities from the antitrust laws to particular groups.11 In China, a greater suspicion of the free market exists among certain segments of society and the government. Moreover, there is a somewhat stronger nationalistic sensibility and a greater sensitivity to national security. Consequently, ideology and public interest concerns may play larger roles in antitrust enforcement than they do in the United States. Moreover, the AML is explicit that goals other than competition may play a role in such enforcement. For example, Article 4 states that one goal of the AML is to “improve control of the macro-economy,” and Article 31 ensures that there may be a separate national security review of merger transactions, including in circumstances involving the concentration of “foreign capital.” Multinational companies may thus have legitimate trepidations about how the AML will be enforced.12 While these problems are not specific to China, the government of China faces greater economic incentives to deviate from the goal of maximizing competition, as compared with the U.S. government or by the European Union,13 due to the existence in China of SOEs.

The SOEs that exist currently are the result of two stages of reform that transformed China from the centrally planned economy of thirty years ago to today’s “socialist market economy.” 14 The first stage of reform, which was initiated after 1978, had two important effects on the performance of enterprises in China. First, it created incentives for managers of SOEs to maximize their profits by linking pay to performance. Second, another type of enterprise—town and village enterprises (TVEs), collectively owned by local groups of workers in rural areas—were encouraged to enter new industries beyond agricultural products, which had been their traditional focus. TVEs have operated largely as autonomous small firms. Given their agility as compared to SOEs, TVEs proved to be an important source of economic growth in China. During this first stage of reform, despite the changes in underlying incentives provided to managers, the basic ownership structures of SOEs and TVEs were left intact— there were very few enterprises with private ownership. The second stage of reform began with the enactment of the Company Law in 1994. Under this law, SOEs and TVEs were reorganized as corporations, while still initially under government or collective ownership. However, the new corporate form allowed SOE and TVE ownership shares to be sold to non-governmental entities. This, in turn, provided a means to easily recapitalize and even completely privatize an SOE. The effect of the Company Law was to create an even stronger profit incentive for SOE managers and an incentive for the owner (generally the government) to shut down unprofitable SOEs. As a result, many SOEs were shut down, while others were privatized. The central government tended to keep control of larger, more profitable SOEs in “important” sectors, such as telecommunications, energy, transportation, and banking, and gave up control of smaller enterprises, either to local governments or through privatization. Between 2000 and 2004, the percentage of large-scale industrial output accounted for by government-controlled corporations declined from 47 percent to 35 percent.15 For the SOEs over which it retained control, the government often sold non-controlling interests to non-governmental entities to create “joint-stock corporations,” which have become a prominent form of corporate structure. Examples are Lenovo, China Mobile, and Sinopec (China Petroleum and Chemical Corporation). In general, shareissuing corporations have become increasingly prevalent in China. The percentage of large-scale industrial output accounted for by share-issuing corporations increased from 31 percent to 45 percent between 2000 and 2004.16 In sum, there is a dichotomy today in China. Small companies, and companies in “unimportant” industries, are to a large degree privatized. Large companies in “important” industries remain government owned and controlled, even if they are joint-stock corporations.17 In principle, the government shares in the profits of such corporations. The government thus has a profit incentive to protect SOEs from comS P R I N G

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petition. Misuse of the AML is one way in which this goal could be achieved, and this provides a basis for the concern of multinational companies that they will be the targets of such misuse.18 It should also be noted that misuse of the AML may take the form of either enforcement against multinational companies that is unjustified on antitrust grounds, or a lack of enforcement against SOEs that are in fact engaging in antitrust violations (e.g., by engaging in exclusionary actions targeted at multinational companies). For example, under the threat of antitrust enforcement, multinationals could possibly be forced to deal with SOEs (e.g., through compulsory licensing of IP). There are, however, several reasons why misuse of the AML might not occur despite this incentive. First, as discussed above, Article 7 of the AML appears to exempt from antitrust enforcement under the AML those industries where SOEs are prominent. Instead, the agencies that oversee these industries may be responsible for regulating their conduct. In that case, for those industries where the AML will be enforced, there will be fewer or no SOEs to protect, which will reduce or eliminate the profit incentive to misuse the AML. Of course, multinational companies already competing with SOEs or those hoping to enter SOE-dominated industries may still be subject to anticompetitive actions on the part of the regulatory agencies—the so-called administrative monopoly problem, addressed above.19 Moreover, there are serious questions as to which industries might be subject to AML enforcement and which will not. For example, will industries with a mixture of SOEs and non-SOEs be subject to the AML or to regulation? Second, the officials in charge of antitrust enforcement are more likely to be motivated by career concerns, which in turn would tend to be furthered by what is viewed as correct enforcement of the AML. In our experience, many of the officials in the Chinese government agencies that are likely to be responsible for AML enforcement appear to be focused on competition as the goal for enforcement. This was borne out in the drafting of the AML, which was undertaken by these same officials and tended to reflect principles consistent with those of the United States and EU. Moreover, during the legislative review of the AML, members of the National People’s Congress appeared to be more concerned about the negative consequences of SOEs’ market power than about how to maintain that market power,20 suggesting that the NPC intends for the AML to be enforced properly against SOEs. To What Extent Will the AML and Its Penalties Deter Companies from Engaging in Anticompetitive Conduct? The economic theory of deterrence suggests that unlawful conduct will be deterred when punishments are designed to give entities the incentive not to engage in the unlawful conduct. Specifically, to achieve deterrence, the penalty if caught, multiplied by the probability of getting caught, should exceed 7 6

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the gains from the unlawful conduct. The penalties associated with being found liable for an antitrust violation in the United States are substantial. Fines may be imposed by the government, and injured parties can sue for antitrust damages, which are then trebled. In criminal antitrust cases, jail sentences may be imposed. While these prospective penalties do not deter anticompetitive conduct entirely, they are an important component of the U.S. antitrust enforcement framework. The U.S. Department of Justice has taken the concept of incentives one step further with its leniency program for “first to confess” price fixers. The first company to report a price-fixing conspiracy to the DOJ and cooperate with prosecution of the other price fixers generally receives immunity from government fines. This creates a “race” to be the first to report. The leniency program is viewed as highly successful in helping to uncover price-fixing conspiracies. It has served as a model for similar programs in other jurisdictions. Chapter Seven of the AML specifies the remedies and penalties that the AMEA can impose. Articles 46 (dealing with penalties for “monopoly agreements,” e.g., price fixing) and 47 (dealing with penalties for “abuse of dominant market position,” e.g., monopolization) state that the AMEA can order a cessation of the anticompetitive conduct, demand a disgorgement of the gains due to the unlawful conduct, and impose a fine of 1 to 10 percent of the company’s revenue in the preceding year. It is not explicitly stated whether the revenue in question is only the revenue associated with the product(s) and market(s) at issue (which would matter in the case of a multiproduct multinational firm). Fines sought by the DOJ for price fixing are based in part on a fixed percentage of the revenue for the product(s) and market(s) at issue, which may or may not be equal to the actual overcharge. Thus, if the AML fines are restricted to the revenue associated with the product(s) and market(s) in question, the deterrence incentives provided by DOJ fines and AMEA fines would appear to be comparable. The AMEA fines may in fact exceed the typical DOJ fine, especially if they are not restricted to the revenue of the product(s) and market(s) in question. It is possible they will provide excessive deterrence. Article 50 states that violators will be responsible for paying damages to others in civil litigation. However, civil antitrust litigation is in its infancy in China. It is not clear whether it will become an effective tool for injured parties to seek damages. For example, because of a lack of an explicit right to discovery, it may be difficult for plaintiffs to prove antitrust damages. In addition, there is no provision for trebling of damages. Thus, the deterrence incentive provided by civil penalties would appear to be significantly weaker in China, at least in the near future. Article 46 states that leniency may be granted to any company that on its own reports engaging in a price-fixing conspiracy and provides “important evidence” to the AMEA regarding the conspiracy. This sounds similar to the DOJ’s leniency program and should provide some incentive for

companies to report conspiracies that they discover. However, the AML differs from the DOJ’s program in several ways that serve to diminish this incentive. First, the apparently discretionary nature of the leniency may not provide sufficient certainty to induce companies to take advantage of it, since a company would not know whether it would receive leniency before confessing.21 Second, without a disparity between the penalties imposed on the first company to report and those penalties imposed on the remaining co-conspirators, the AML does not provide companies with any incentive to be the first to report. Conclusion China’s particular economic and political structures create an interesting set of incentives and motivations for companies and government officials. We have attempted to address some of the questions about how the AML will be enforced by exploring the effects of these incentives and motivations. While the complex mix of incentives make it difficult to predict exactly how the AML will be enforced, we remain optimistic that, given the direction China is headed, competition will ultimately be the goal pursued by China’s antitrust enforcers.

1

For details about the specific contents of the AML, as well as an English translation, see Nathan Bush, The PRC Antimonopoly Law: Unanswered Questions and Challenges Ahead, A NTITRUST S OURCE , Oct. 2007, http:// www.abanet.org/antitrust/at-source/07/10/Oct07-Bush10 -18f.pdf. We rely on this translation in this article. One example of a provision that would not be found in U.S. law is the AML’s prohibition against dominant firms charging “unfairly” high prices. See Article 17(1).

2

See Xinzhu Zhang & Vanessa Yanhua Zhang, The Antimonopoly Law in China: Where Do We Stand?, 3 C OMPETITION P OLICY I NT ’ L 185 (2007).

3

See, e.g., Bush, supra note 1, at 5.

4

It is worth noting, however, that the problem of administrative monopoly is not unique to China. A primary goal of the formation of the European Union was to foster the free flow of products between Member States by breaking down barriers that had been erected by the States. Similarly, in the United States, certain local laws (e.g., requiring a three-tier beer distribution network) are arguably anticompetitive. However, given the history of China’s political structure, there is a tighter link between local governments and local companies than exists in the United States or the European Union.

5

The focus on regional blockage and the lack of a focus on central government administrative monopolies is another source of concern that the AML may be misused to protect Chinese companies from competition by multinational companies, while at the same time increasing competition among Chinese firms.

6

This question is addressed in greater detail in Bruce M. Owen et al., Antitrust in China: The Problem of Incentive Compatibility, 1 J. C OMPETITION L. & E CON . 123 (2005).

7

See M ARK W ILLIAMS , C OMPETITION P OLICY AND L AW IN C HINA , H ONG K ONG , AND TAIWAN 143 (2005) (“the attempt to rein in unruly local authorities has failed for the last twenty years”); see also R ANDALL P EERENBOOM , C HINA’ S L ONG M ARCH T OWARD R ULE OF L AW 210–11 (2002) (noting “economic reforms, which have resulted in undeniable decentralization and fragmentation of authority [and which have] strengthened provincial and local governments”).

8

Zhang & Zhang, supra note 2, at 199.

9

Consider, for example, Federal Trade Commission Chairman Deborah Majoras’s resistance to the intense political pressure to condemn companies in the petroleum industry for gasoline price increases.

10

Brown Shoe Co. v. United States, 370 U.S. 294, 315–16 (1962) (noting that among the factors motivating Congress to amend the Clayton Act in 1950 were “the desirability of retaining ‘local control’ over industry and the protection of small business”).

11

For example, the Capper-Volstead Act, 7 U.S.C. § 291 et seq., which exempted agricultural cooperatives from antitrust enforcement in the United States, was motivated by political considerations much in the same way as Article 56 of the AML. Article 56 provides that “[the AML] shall not apply to the alliance among or concerted actions by farmers and the farmers’ economic organizations in connection with the processing, sales, transportation, and storage of agricultural products and other business activities related to agricultural products.”

12

See, e.g., Anti-Monopoly Division, Fair Trade Bureau, State Administration for Industry and Commerce (SAIC), Multinationals’ Anti-Competition Behavior in China and Counter-Measures Therefore (Mar. 1, 2004) (English translation available at http://www.abanet.org/antitrust/at-committees/at-ic/pdf/ programs/Multinationals_anti_competition_behavior_eng_v1.pdf). This document attacks various conduct on the part of multinationals—conduct which would very likely be considered procompetitive under U.S. antitrust law—in part on the basis that Chinese firms’ interests have been “jeopardized.” This would appear to reflect both nationalistic and ideological concerns. See also Bush, supra note 1, at 2 (“[there is] real disagreement within the Chinese government and academic establishment as to the proper role of the AML”).

13

One potential exception was the European Commission’s investigation of the Boeing-McDonald Douglas merger. This merger was arguably a competitive threat to Airbus, which was partially owned by EU Member States France, Spain, and Germany.

14

For a detailed discussion of these reforms, see B ARRY N AUGHTON , T HE C HINESE E CONOMY : T RANSITIONS AND G ROWTH (2007).

15

C HINA S TATISTICAL Y EARBOOK 2005, available at http://www.stats.gov.cn/ english/statisticaldata/yearlydata/.

16

Id.

17

Examples of SOEs in “important” industries include China Mobile and Sinopec. There also exist companies that are government owned and controlled but do not appear to belong to the “important” industry category. Lenovo is an example. From Article 7, it is not clear which industries belong to the “important” category. It is also not clear whether those government owned and controlled firms that do not belong to the “important” industry category will be exempted. The issue is more unclear still when an exempted firm merges with a non-exempted firm—this raises the question as to whether the combined company will be exempt, non-exempt, or partially exempt. Such mergers are occurring with regularity. For example, Legend Holdings, the parent of computer maker Lenovo Group, has offered to buy a majority stake in Hong Kong-listed China Pharmaceutical Group, a pharmaceuticals manufacturer and a 57.78 percent-owned unit of Chinese stateowned Shijiazhuang Pharmaceutical Group Co Ltd. See Lenovo Parent Seeking Majority Stake in China Pharmaceutical, F ORBES , June 6, 2007, http://www.forbes.com/markets/feeds/afx/2007/06/13/afx3819665. html. Similarly, ArcelorMittal, the world’s largest steelmaker, is seeking to acquire China Oriental Group Co., a privately owned steel company that until recently was an SOE. See Shu-Ching Jean Chen, ArcelorMittal Compelled to Bid for All of China Oriental, F ORBES , Dec. 6, 2007, http://www.forbes.com/ 2007/12/07/arcelormittal-china-oriental-markets-equity-cx_jc_1207 markets01.html.

18

Of course, as mentioned above, nationalism, ideological beliefs, or other factors could also lead to misuse of the AML.

19

China has attempted to address this adverse incentive by removing from the regulatory agency responsibility for making decisions as “owners” of the SOEs. The State Asset Supervision and Administration Commission was created to fulfill this role.

20

Peter J. Wang & Yizhe Zhang, New Chinese Anti-Monopoly Law, http:// www.jonesday.com/pubs/pubs_detail.aspx?pubID=S4662, at 2.

21

A similar issue has arisen with respect to the EU’s proposed settlement procedures. See Joint Comments of the American Bar Association Section of Antitrust Law and Section of International Law In Response to the Commission of the European Communities’ Request for Public Comment on the Draft EU Settlement Procedures, http://www.abanet.org/antitrust/at-comments/ 2007/12-07/Comments-EUDraftSettleProc.pdf.

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