Advances in the implementation of the Anti-Monopoly Law (‘AML’) of China have been remarkable since its enactment in August 2008. The Chinese competition authorities—MOFCOM, NDRC and SAIC—have been increasingly active in recent years, handling cases that have drawn widespread local and international attention. As the authorities gradually accumulate case work experience and capacity, their analyses and decisions are likely to become more sophisticated. For example, MOFCOM appears to increasingly use economic analysis in assessing complicated mergers. In line with the growth of public enforcement by competition authorities, private actions under the AML before the Chinese courts have also progressed rapidly. The Chinese courts have heard and ruled on a number of high-profile private disputes involving both large domestic and international companies. Recent judgments suggest that the courts have started to show the capability and the willingness to engage in economic debates and to deal with the evidence put forward by the parties’ economic experts. Notably, the judgment by the Supreme People’s Court of China (‘the SPC’) in Qihoo 360 v Tencent, published in October 2014, highlights the importance of economic evidence before the Chinese courts in private AML disputes. In this landmark case— the first case under the AML to go to the SPC—the court adopted an effects-based economic framework in ruling on a complex abuse of dominance dispute. This Judgment sends a promising signal that economic reasoning and evidence will be taken seriously in future Chinese court cases. However, despite the attempts by the courts, and to some extent the competition agencies, to increase transparency, official decisions generally reveal limited information about the substantive discussions and practical considerations that drive the decision-making processes behind competition investigations. It is therefore unsurprising that antitrust practitioners and interested parties, particularly those located outside China, often find it hard to understand how economic analysis is used in practice in Chinese antitrust matters. In this article, we draw on our experience of advising MOFCOM and notifying parties in merger cases, and of giving expert testimony before the Chinese courts in private litigation, to shed light on the use of economics in antitrust matters in China. We first provide an overview of antitrust enforcement and the use of economic analysis by the authorities and the courts in China. We then discuss some lessons from two recent cases, namely, the proposed joint venture between Wilmar and Kemira in China that was cleared by MOFCOM unconditionally in June 2014, and the Qihoo 360 v Tencent litigation that
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Open Access
May 11, 2018
Victor P Goldberg 
