COMPARATIVE ANALYSIS OF MERGER CONTROL POLICY. Lessens for China

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1 COMPARATIVE ANALYSIS OF MERGER CONTROL POLICY Lessens for China Jingyuan MA Hl intersentia Cambridge - Antwerp - Portland

2 CONTENTS Acknowledgements Table ofcases Table oflegislation List of Abbreviations List oftables and Figures v xv xvii xxi xxiii Chapter 1. Introduction 1 1. Introduction 1 2. Motivation 3 3. Research Question 4 4. Structure 6 5. Methodology 7 6. Limitations 8 Chapter 2. The Development of Competition Law and Merger Control Policy in China Introduction The 1978 Market Reform Merger and Acquisition between SO Es Reform ofsoes Merger Policy for SOEs Merger and Acquisition by Foreign Investors Foreign Direct Investment Entry into the WTO Merger Policy for Foreign Investors An Overview of the Anti-Monopoly Law and the Merger Policy Competition Policy before the AML The Drafting Process of the AML An Overview of the AML Enforcement of the AML Three Enforcement Agencies MOFCOM: the Merger Enforcement Agency Merger Guidelines after the AML Notifikation Guidelines Assessment Guidelines 40 ix

3 Comparative Analysis of Merger Control Policy 6. Non-Economic Goals in the AML and Merger Policy The Development of a Socialist Market Economy Concerns of Protecting SOEs Promoting Public Interest National Security Review Interpreting the Multiple Goals of the Chinese Anti-Monopoly Law Academic Scholars Non-Economic Goals versus Economic Goals The Development of a Socialist Market Economy Competition Policy versus Industrial Policy The Considerations of Public Interests Considerations of National Security Efficiency and Weifare Standards The Legislative Debate Policy Makers Conclusion Conclusion 58 Chapter 3. Goals of Competition Policy in the US and the EU: A Law and Economics Perspective Introduction Goals of Antitrust Law in the US Introduction Social and Political Goals of Antitrust Populism Influence of Populism in Court Criticism from Academic Scholars Harvard School The Structure-Conduct-Performance Paradigm Harvard School's View on the Goals of Antitrust Law Influence of the Harvard School in Court Chicago School Chicago School's View on the Goals of Antitrust Law EfRciency as the Sole Aim Rejecting the Goal of'maximizing Competition' Bork's Use of'consumer Weifare' Influence of the Chicago School in Court Criticism from Academic Scholars Interpreting Legislative Intent The Concerns of Distributive Effects Protecting Competition as the Goal 82 x

4 Contents 2.5. The Debate on Weifare Standards in the Post-Chicago Era Consumer Weifare Standard Who is the Consumer? What is Consumer Weifare? Consumer Weifare or Consumer Surplus? Consumer Weifare Maximization Consumer Choice Consumer Weifare versus Total Weifare Distributive Issues Implementation Issues Conclusion Goals of Competition Law in the EU Introduction The Market Integration Goal The Consumer Protection Goal Consumer Weifare versus Total Weifare Defining 'Consumer Weifare' The Total Weifare Goal and Industrial Policy The Influence of Ordoliberalism Ordoliberalism The Influence of Ordoliberalism on EU Competition Law The Evolution of Legal Doctrine Historical Backgrounds The Market Integration Goal of the EEC The Extension of the Policy Goal of the TEU The Social Goals of the TFEU A Viewpoint from the Competition Commissioners Commissioner Karel Van Miert ( ) Commissioner Mario Monti ( ) Commissioner Neelie Kroes ( ) Conclusion Conclusion 116 Chapter 4. Integrating the Efficiency Goal in Merger Control Policy: A Comparative Perspective Introduction Economic Theories of Efficiency Productive Efficiency Allocative Efficiency Dynamic Efficiency 124 xi

5 Comparative Analysis of Merger Control Policy 2.4. Conflicts between Allocative, Dynamic and Productive Efficiencies Unsolved Issues Economic Analysis of Merger Effects Economic Effects of Mergers The Williamson Tradeoff Impact on the Choice of Weifare Standards Integrating Efficiency Goals in the US Merger Control Policy Introduction Academic Debate Concerns of Legal Uncertainties Economic Techniques to Measure Efficiencies Efficiency Defense Merger Guidelines Horizontal Merger Guidelines Horizontal Merger Guidelines Horizontal Merger Guidelines Horizontal Merger Guidelines Horizontal Merger Guidelines Horizontal Merger Guidelines Judicial Treatment Hostility toward Efficiency Claims Cautiously Accepted Efficiency Claims Integrating Efficiency Goal in the EU Competition Policy Introduction Merger Regulation Merger Regulation 4064/ EC Merger Regulation (ECMR) Case Law Negative View on Efficiency Claims Cautiously Accepted Efficiency Claims Conclusion 155 Chapter 5. The Impact of Competition Goals on Merger Cases: A Comparative Perspective Introduction An Overview of Merger Cases in China Merger Policy in China: Five Years' Implementation A Brief Overview ofmofcom's Merger Decisions An Overview of the MOFCOM Published Cases Observation: How Does the MOFCOM Investigate? Observation: The High Use of Behavioral Remedies 165 xii

6 Contents Observation: The Focus on Market Share Summary The Economic Theories and Techniques for Horizontal Merger Analysis: A Brief Summary Market Power Indirect Assessment of Market Power The Definition of the Relevant Market Market Concentration Market Share The Consideration of Efficiency Gains Entry Buyers' Power Remedies Direct Assessment of Market Power Introduction Merger Simulation Techniques Comparing Merger Policy in the US, the EU and China Introduction Comparing Merger Policy in the US and the EU: A Theoretical Debate The Concepts of'monopolization versus 'Dominance' The Definition of Relevant Market The Treatment of Econometric Techniques Comparing Merger Policy in the US, the EU and China: Empirical Evidence Comparing Merger Decisions in the US and the EU Empirical Evidence on EU Merger Policy Empirical Evidence on Merger Policy in China Conclusion Comparing Merger Policy in the US, EU and China: Two Gase Studies Panasonic/Sanyo Case Case Summary A Comparative Study on Economic Analysis of Merger Effects Conclusion Seagate/Samsung and Western Digital/Hitachi Case Case Summary A Comparative Study on Economic Analysis of Merger Effects Conclusion Summary: What Can the Evidence Teil? 220 xiii

7 Comparative Analysis of Merger Control Policy 5. Does Goal Matter? A Discussion on Competition Goals and Merger Policy Different Goals, Different Results? Moving Towards Economic Goals? Implications for Chinese Policy Makers Conclusion 228 Chapter 6. Conclusions Different Goals in the US, the EU and China Competition Goals and Merger Analysis Lessons for China Future Research 234 References 237

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