| Merger control is one of the core elements of antitrust law enforcement. Mergerremedies are the core content of merger control. Merger remedies can preventanticompetitive effects of mergers. Through merger remedies, governments canmaintain the balance between effective competition in the market and economics ofscale in enterprises.In this paper, based on methods of comparative research, case study and empiricalresearch, the author undertakes to provide an outline of a model merger remediesregime for China, by analyzing the US and EU experience of legislation and lawenforcement, as well as research reports of international organizations such as ICNand OECD.This paper aims to provide policy proposals on the legislation and enforcementof China's antimonopoly law, based on a systemic analysis of merger remedies inother jurisdictions. For this purpose, this paper focuses on the analysis of thelaw enforcement procedure of merger remedies,such as how to determine remedies, howto implement remedies, how to modify remedies, and how international cooperationin merger remedies is conducted. At the end of this paper, the author also conductsan analysis of legislation and practices of merger remedies in China, and providessuggestions on how to improve China's merger remedies regime.The contents of this paper is summarized as follows:Chapter one, the role of merger remedies. In this chapter, the author analyzesthe role of merger remedies in antitrust law. The author provides a comprehensivepicture of merger control, by specifying the rules in defining an anticompetitiveeffect, the rules in pleading, and the rules in merger remedies. Merger remedies,being the core content of merger control, are the fundamental way to remedy ananticompetitive effect. They are important legal measures to maintain the balancebetween effective competition and development of enterprises. In other words,through merger remedies, governments can make competition in the market workablewhile preserving the benefits of enterprise development.Chapter two, the different types of remedies. This chapter analyzes differenttypes of remedies which are the foundation of the system of merger remedies. Structural remedies and conduct remedies are the main types of remedies. Structuralremedies normally emphasize intervention in assets ownership of enterprises, whileconduct remedies restrict the conduct of enterprises. Existing stand-alone businessunit is the most favored form of asset divestiture. Structural remedies involvedin asset divestiture such as intellectual property rights divestiture andshareholding divestiture. The form of conduct remedies varies. According to the goalof remedies, conduct remedies are divided into two types of remedies i.e."measuresfacilitating horizontal rivalry" and "measures controlling merger outcomes".Access commitment, non-discrimination provisions, purchasing commitment, firewallprovisions, transparency provisions, anti-retaliation provisions and restrictionson reacquisition of scarce personnel assets are typical forms of conduct remedies.Chapter three, the judging of remedies. This chapter analyzed how to determineremedies in merger cases. In the process of merger review, to propose remedies isan obligation of enterprises. Antitrust agencies appraise remedies propositionsaccording to the principles of efficiency, proportionality, executable and easy tomonitor and not raise any competition problem. The Market Test is the most importantmethod used in judging remedies proposals. In the past, antitrust agencies preferstructural remedies over conduct remedies. In recent years, U.S. and EU agenciesare changing their traditional attitude towards conduct remedies. Structuralremedies are usually used in horizontal mergers while conduct remedies are usuallyused in vertical mergers. In some cases, structural remedies and conduct remediesare used in the same case.Chapter four, the implementation of remedies. This chapter discusses the issuesin implementing remedies. How to guarantee the implementation of remedies is a keyissue, and this chapter analyzes the rules in safeguarding the implementation ofstructural remedies and conduct remedies. Quality control of the buyer and the timingof assets divestiture, preservation of the independence of the assets in the interimperiod, entrusting divestiture trustee and monitoring trustee, setting up crownjewel provisions are the rules in safeguarding the implementation of structuralremedies. Entrusting monitoring trustees and setting up arbitration mechanisms arethe rules of safeguarding the implementation of conduct remedies. Chapter five, the modification of remedies. Setting up modification mechanismsare measures often used by antitrust agencies of the U.S and EU to ensure theeffectiveness of remedies. This chapter discusses the application, review andcontents of remedy modification. Because of changing market conditions or othercauses, it is possible that remedies can not be enforced. Therefore, enterprisesoften suggest modification of remedies. The review standards applied by agenciesare the same as the standards applied in the process of determining remedies, andare mainly focused on changing market conditions. If necessary, Antitrust agenciesmay apply the market test to determine the effectiveness of modified remedies. Theforms of modification of remedies are waived, only to modify and substitute remedies.The modification of conduct remedies is most common and its form varies. In somecases, it is possible that agencies agree on extending the divestiture deadline orto change the proposed buyer.Chapter six, the international cooperation of merger remedies. With thedevelopment of economic globalization, international cooperation between antitrustagencies is increasingly important. Over the past decade, the bilateral cooperationof merger remedies such as between the U.S and EU have made great progress. In theinternational cooperation of merger remedies, different countries often exchangeinformation and positive comity. The effective cooperation of different countriesin merger remedies mainly relies on the cooperation of enterprises, especially onenterprises' willingness to disclose confidential information and reasonablearrangement of merger notification timeframe in different countries.Chapter seven, suggestions for Chinese legislation and practices. Based on theanalysis of the institution of merger remedies, this chapter discusses the Chineselegislation and practices, analyzes the issues and provides suggestions.Although in China, there are rules on merger remedies, especially structuralremedies, the rules are still inadequate. China should formulate more rules in mergerremedies through a more open legislative process and adopt more varied forms of rules.China should further distinguish the types of remedies, and set up procedures forremedy proposals and the standards of appraisals. China should set up the rules of"up front buyer","fix it first","crown jewel" and arbitration mechanisms. China should improve the rules in the notification and review of the modifiedremedies. On the other hand, Chinese agencies can promote merger remedies by settingup rules in post-merger monitoring, rules in collecting industry information andtrustee information, and rules in expert consultation.In practice, Mofcom has made great progress in handling twelve cases with theuse of remedies showing confidences in enforcing antimonopoly law. However, issuesremain in the enforcement law of Mofcom. Specification on the relevance betweenanticompetitive effects and remedies, on the transparency of remedies, and on themodification mechanisms of remedies is required. Mofcom should provide greatertransparency of remedies and carefully select conduct remedies, especially"measures controlling merger outcome". Mofcom should emphasize the notificationof anticompetitive effects to the enterprises in a timely manner, and emphasize themarket test of proposed remedies. Mofcom should prevent applying commitments thatare not remedies. It should strengthen the safeguard institutions remedy enforcement,maintain the confidentiality of discreet information of remedies, emphasize themodification of remedies, and clarify the power of Mofcom in monitoring theimplementation of remedies.
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