Antitrust probes open and fair

The recent high-profile probes into multinational shipping, auto and high-tech companies have been accompanied by penalties on State-owned enterprises and sweeping measures to tackle administrative monopolies.

Antitrust probes are a key element of China's policy to free the market of predators and monopolies to build a level playing field for enterprises regardless of their nationalities or ownership structures. But still some people see the antitrust moves as discriminatory and coercive.

In August last year, for example, Reuters quoted two anonymous sources to claim that a Chinese antitrust official "pressured" multinationals to confess to antitrust violations and warned them against hiring "independent" lawyers to fight their cases. In April this year, the US Chamber of Commerce wrote to US Secretary of State John Kerry and Treasury Secretary Jacob Lew, urging Washington to pressure Beijing to deal leniently with foreign companies in the antitrust probes. And earlier this month, the European Chamber of Commerce said it had heard "alarming" accounts from European companies that intimidation tactics are being used to force companies to accept penalties without full hearings.

Most of the allegations focus on procedures. Lobbyists see China's antitrust move as a protectionist tool favoring the domestic industry, and thus avoid assessing the antitrust move from the market's point of view and asking whether companies can violate market laws in the US and get away with it.

So, are the allegations based on facts or are they speculative? Three government agencies - the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce - were tasked in August 2008 to enforce the Anti-Monopoly Law in China. The law respects all parties' right to be heard and the right of defense, giving the parties facing investigation the opportunity to get sufficient information on antitrust concerns and to respond to them. It also allows them to seek administrative and judicial reviews of the adverse decisions.

After closely observing parties and officials under investigation for six years as an antitrust lawyer and then as a researcher, I have reached certain conclusions. First, no company under investigation appealed its case without the help of "independent" lawyers. "Independent" lawyers have frequently appeared at oral hearings, submitted written responses on behalf of their clients and attended meetings and less formal consultations with teams working on cases and senior decision-makers. In fact, market sources say there has been a 20 percent increase in the demand for antitrust lawyers, and they have become the "hottest commodity" in the legal sector in the past 12 to 18 months. How could this happen if companies were not hiring lawyers?

Second, enforcement records reflect increased transparency. Under the Anti-Monopoly Law, the Minister of Commerce is required to publish prohibition and conditional merger decisions, but not unconditional merger clearance. For monopoly agreements and abuse of the dominant position a company enjoys in the market, the law says enforcement agencies "may publish the decisions", which means that publication of decisions is at the discretion of the NDRC and the SAIC. But despite that, the NDRC and SAIC have published enforcement information and decisions, and, since late 2012, the Ministry of Commerce has made public merger decisions on a quarterly basis.

And third, rule-making has been expedited to increase legal certainty and accountability. New rules, including those limiting discretionary powers, are in the offing.

In sum, China's antitrust move broadly conforms to international norms in substance and is marked by increasing transparency and due process. Due process and fair dealings are fundamental human rights, which should be applicable to enterprises too.

But procedural rules differ significantly from one country to another, depending on variables such as legal culture, tradition and stage of development. China, though, welcomes unbiased and constructive opinions. There is an increasing need for lawyers to help resolve questions, from substantial to procedural aspects of complicated antitrust cases.

People are indeed welcome to bring in their lawyers. Chinese antitrust enforcement officials are listening. But finding faults where there are none and spreading rumors or rigidly applying the US and EU standards to Chinese rules do not help.

The author Jessica Su is an associate professor at the Institute of American Studies at the Chinese Academy of Social Sciences.