Study On The System Of The Behavioral Remedies In The Concentration Of Undertakings

The antimonopoly law system consists of three main backbones: merger control, abuse of dominant market position and monopoly agreement. Under the merger control system, antimonopoly enforcement authorities will conduct antimonopoly review to the proposed concentration of undertakings which reaches the threshold of notification and will evaluate the actual or potential effects made by concentration to the competition in the relevant market. The antimonopoly enforcement authorities, subject to the review, may provide three kinds of decisions regarding the concentration: one is to approve the concentration without condition; the other one is to approve the concentration with conditions; the last one is to totally prohibit the concentration. The approval of concentration of undertakings with conditions also names to merger remedies, the regulations on which refer to the merger remedies system.The two basic patterns of merger remedies are structural remedies and behavioral remedies. Regarding the application of merger remedies, there is always an argument existing in both theoretical and practical fields: weather the structural remedies shall be applied prior to the behavioral remedies or not. The traditional views, providing the priority application to structural remedies, suppose that the structural remedies could eliminate the anti-competition concerns once for all, while the behavioral remedies need the continuous supervision by antimonopoly enforcement authorities and they are easy to evade. Recent years, the above views having been facing more and more challenges: on one hand, the structural remedies themselves are not perfect yet and may cause new competition concerns; on the other hand, the advantages of behavioral remedies are receiving more and more acceptances. Since 2009, Department of Justice of Unite States had applied the behavioral remedies as main remedies in some typical merger cases. And then, in 2011, Department of Justice of Unite States amended its Merger Remedies Guidelines, affirming the value of behavioral remedies and expanding its scope of application. These new changes result in the intense debate regarding which are the prior remedies again. There comes no clear conclusion for this debate yet, mainly because of the deficient of practical examination to the actual effects of behavioral remedies.The merger control system is provided in the Antimonopoly Law, as well as merger remedies system. The Provision on Imposing Restrictive Conditions on Concentrations of Undertakings(for Trial Implementation) is published by Ministry of Commerce on 4th December 2014 and will come into effect in January 2015. However, there is no rule only focusing on behavioral remedies in the Provision. Since the Antimonopoly Law was implemented in 2008, the Ministry of Commerce had applied behavioral remedies in 15 merger cases out of the 24 merger cases with remedies, which showed a high proportion. It receives a wild attention and discussion from the both theoretical and practical fields, domestic and abroad, of which there is question on the effectiveness of behavioral remedies.The merger control is of high importance to the aim realization of merger control. Due to the deficiency of the legislation and the enforcement evaluation regards to behavioral remedies, it is very necessary to conduct a scientific study to behavioral remedies. So far, there are few papers focusing on behavioral remedies, the only relevant researches are conducted within the framework of merger remedies, without pertinence, systematicness and deepness. With this background, this paper aims to conduct a focusing research on behavioral remedies, starting from the comparison between structural and behavioral remedies, to find out the value of behavioral remedies in merger remedies system and how to ensure their value well used, so as to provide some helpful reference and advice to our legislation and enforcement of merger remedies.For the above purpose, this paper applies the research manners including empirical study, comparative study, cross-over study and so on, from value discovery to value realization, to make a deep research on behavioral remedies. Chapter One and Two are for basic illustration, introducing the merger remedies system including the concepts, aims, principles and classification of remedies; Chapter Three and Four make a dialectical comparison between both remedies and a study on the classification and application to behavioral remedies respectively, aiming to find out the value of behavioral remedies; Chapter Five focus on the discussion regards to the implementation and supervision of behavioral remedies, including the supervision trustee, third-party dispute settlement, review clause, penalization and review of effectiveness, aiming to find out how to guarantee the value of behavioral remedies well used; Chapter Six provides some comments and suggestions to our legislation and enforcement regarding the behavioral remedies.Through the scientific analysis, this paper achieved the following conclusions: First, through the merit comparison and application analysis, the behavioral remedies are found of value and could be used solely or partly to solve the competition problems caused by the concentration; Second, it shall be based on the anti-competition impacts analysis case by case to apply the rational remedies rather than simply depending on the style of remedies nor applying any model of solution; Third, the effective supervision is a key matter to make sure the behavioral remedies be observed. For this purpose, the supervision trustee system shall be fully utilized, the third-party dispute settlement system shall be introduced, and the review of effectiveness shall be conducted soon.