A Study On The Antitrust Regulation Of Concerted Practices

Prohibition of agreements restricting and constraining competition is the focal point ofthe antitrust enforcement concerns of many jurisdictions. According to the current status ofmonopoly agreements, the anti-monopoly law has taken harsh measures against the writtenmonopoly agreements, and then the operators tend to use more flexible and confidential waysto achieve monopoly agreement. Due to concerted practices’ properties, it is not easy to beperceived and proved. At the same time, the provisions in Anti-Monopoly Law are notoperable in practice. Therefore, how to effectively identify the conspired conducts in amonopoly agreement has become a key issue in Anti-Monopoly law, which is left open to beresolved.This paper attempts to use the proof of conspiracy between parties as a breakthroughpoint. Then it will try to develop the rules for identifying concerted practices. Combining withthe cases in practice, this paper is trying to explore the problems in regulating concertedpractices under Chinese antitrust law. Following an analysis of these shortages, this paper willdraw on experiences from extraterritorial legislative and enforcing practices, and will try tosuggest reasonable proposals on concerted practices regulation.This paper is divided into the following four parts:The first part is an introductory of the defining concerted practices based on thedimensions of proving conspiracy. Firstly, this paper will clarify the definition and elementsof concerted practices in a detailed way, and then it will present the progression economictheories underlying concerted practices in a sequence. Thus we will have a glance on the basicframework of the concerted practices. Secondly, it will explore the way to prove whetherconcerted practices has been established. It will have an elaborating analysis andcharacterization of the circumstantial evidences to prove concerted agreement, and todetermine whether there are additional factors in the market that prone to be concertedpractices, This will in turn help to presume the establishment of concerted practices.The second part of this paper, an examination of the current situation of China’santi-monopoly regulation on concerted practices will be presented from the perspective ofempirical analysis. It will follow with an empirical analysis on several concerted practicescases, rethinking the inadequacy of legislation and enforcement in identifying concerted practices under China’s anti-monopoly law.In part three, there will be a comparative analysis of extraterritorial concerted practiceslegislation, judiciary and enforcement in countries, such as United States, Europe, Germany,Russia. Then this part will summarize the experiences which we can draw on.The fourth part proposes the measures to refine our concerted practices regulation. Firstof all, in terms of legislation, we need to study the subtle rules for defining concertedpractices. Secondly, the enforcement power of antimonopoly enforcement authorities onregulating concerted practices need a further refinement. Finally, we should transform ourgovernment functions in order to guarantee the success of concerted practices regulation.