The Anti-monopoly Law Exemption For Export Cartels

Export cartels are agreements or arrangements between firms to charge a specified export price and/or divide export markets(that is markets of the target states).Many countries have listed export cartel as the exemption from their antitrust or competition law,while practiced jurisdiction over cartels exported from other countries at the same time.The competition law of importing and exporting countries have different legal value judgments,which has caused conflicts in judicial practice.Chinese enterprises have also encountered antitrust lawsuits outside the territory related to domestic practice of export cartels.Therefore,the question that needs to be studied is: Should further legislation abolish the export cartel exemption for its ineffective.To answer this question,it comes to the first: whether the law/regulation should be cancelled depends on whether it is beneficial to Chinese enterprises,which directly reflects whether our export enterprises will be held liable in import states' antitrust laws;What needs to be asked is the theoretical and valid basis for pursuing enterprises from other countries,whether foreign countries grant export cartels exemption and what kind of method is used.Therefore,this article in turn starts from the last question and finally draws the conclusion.Chapter One discusses the regulatory attitude of exporting countries towards export cartels inside them.The origin of the export cartel exemption is based on the needs of a specific period of international trade background and policy orientation.However,from the results of economic analysis,the export cartel has the potential to bring both competitive benefits and competition damage.Each country only pays attention to the domestic market and unilaterally grants the export cartel exemption,which causes the inevitable internal conflict.The development of competition laws in the United States and the European Union is relatively mature.As two typical export cartel exemption legislation models,certain conditions are required.The explicit exemption model in china adopted in anti-monopoly law does not impose any procedure or requirement for export enterprises.The vague expression of legitimate interests constitute implied permission and encouragement for domestic export companies forming cartels.Chapter Two discusses the regulations and jurisdictions of importing countries on cartels exported from other countries.Export cartels have the effect of restricting competition in importing states.The country exempts export cartels that are formed within its territory,while exercising jurisdiction over export cartels that are composed outside the region but have impact on its market.The U.S.antitrust law promotes the extraterritorial application of antitrust law by establishing the "effect principle".The European Union has extended the standard of "corporate unity and place of implementation" by expanding the interpretation of the territoriality principle.Anti-monopoly law enforcement agencies in china have imposed penalties on foreign companies that have anti-competitive effects through the interpretation of Article 2 of the anti-monopoly law,but there is no clear legal rules and liability basis in court jurisdiction.Chapter Three discusses the rules on which the effect of export cartel exemption within a region can be effective outside.Because countries usually use the principle of effect to break through the principle of territorial jurisdiction,the extraterritorial application of antitrust law is accompanied by international trade litigation and jurisdiction conflicts.The sovereignty-related defense set up in each country's legal system may be invoked to reduce trade frictions between countries.The relevant judicial trial practices of the United States Antitrust Law have shown the application of the international comity principle and foreign sovereign compulsion defense.The international comity principle in international law has a certain scope for application here,but the jurisprudence reflects the requirement for true conflict in laws.In addition,sovereign compulsion defense can also be invoked,while jurisprudence and regulations indicate that those enterprises were enforced by the government and if they refuse to comply then would be punished strictly.Vitamin C case reflects the uncertainty of the application of international comity and foreign sovereignty.Also,Chinese companies need to pay attention to the search and application of precedents in the process of responding for stronger defense.Chapter Four draws the understanding of the china's anti-monopoly legal system of export cartels based on the above analysis.This article considers that the necessity of the export cartel exemption system should be re-examined.Based on the internal conflicts of its regulatory basis,changes in international common practices,and the difficulty of achieving the legislative goal,consideration should be given to eliminating the explicit exemption system for export cartels.Correspondingly,in order to cope with the possible interference from external export cartels towards China,while strengthening the application of antitrust laws outside our country,we should actively seeking regionally integrated competition-treaties and more high-level international cooperation for the regulation of export cartels.Based on the above analysis,this article draws the following conclusions: On the one hand,the explicit exemption system for export cartels should be eliminated;on the other hand,the extraterritorial application of China's anti-monopoly law should be strengthened.