The Failing Company Doctrine In The Antitrust Inspection Related To M&A

With the development of antitrust law,the antitrust inspection related to M&A is widely provided in the antitrust law of many countries to restrain monopoly and protect competition by imposing certain control on M&A.However,in actual practices,many countries exempted the M&A of insolvent companies from the general control,the Failing Company Doctrine significantly represented such an exemption,which allows the M&A of insolvent companies and no anti-competition consequences would occurred.Failing Company Doctrine arises from USA,which was firstly presented in the case of International Shoe Co.,Ltd v.FTC(1930).Afterwards,the court widely applied the Failing Company Doctrine in jurisdiction and largely expanded its applicable scope.Currently,as a world-widely recognized rule,the Failing Company Doctrine has been introduced to the anti-trust laws of major developed countries,which is one of the due causes for antitrust exemption.As proved by the legal practices in many countries,the M&A of insolvent companies could be exempted from the general control if certain conditions have been satisfied. Evidently,the Failing Company Doctrine represented the trend of antitrust policies in the world,which considered the integrative impacts to the competition and other aspects of the society under the situation of being quitted from the market or being acquired by the competitors for the insolvent company.As for the economic status and legal practices in China,the current laws and regulations could not be adapted to the latest development of the M&A of insolvent companies in the recent years.Currently,China has issued its Antitrust Law,which does not expressly contain the contents related to the Failing Company Doctrine. Therefore,from the view of antitrust control,the Failing Company Doctrine is unable to be applied in China.This thesis proposed the constructive suggestions on the application of the Failing Company Doctrine in the legal practices of antitrust law in China based on the study of the regulations and actual practices related to the Failing Company Doctrine in major developed countries and the analysis of the historical developments and typical cases of the Failing Company Doctrine.