Research On The Extraterritorial Application Of Anti-monopoly Law

Extraterritorial application of anti-monopoly law refers to the legal system in which the anti-monopoly law,as a domestic law,applies to foreign monopolistic acts outside the sovereign jurisdiction of the country.In essence,it is the extraterritorial jurisdiction of a country,focusing on the extraterritorial law enforcement and judicial jurisdiction over the monopolistic acts occurring outside the country's borders.It is different from long-arm jurisdiction in related fields,jurisdiction types,legal basis,legal consequences and countermeasures.The legal basis of the extraterritorial application of anti-monopoly law is the theory of partial behavior,the theory of attribution and the theory of effect.The main objects of extraterritorial application of anti-monopoly law are international cartel and transnational merger and acquisition.From strictly following the territorial principle to formally establishing the effect principle,the change of the extraterritorial application principle of American anti-trust law reflects the change of American economic policy.In order to ease the conflict with other countries on the extraterritorial application of anti-trust law,the United States established the principle of reasonable jurisdiction as the basis for the extraterritorial application of anti-trust law,and appropriately gave up the extraterritorial jurisdiction of its courts according to the principle of international comity.The European Court of Justice(ECJ)has drawn on the experience of the application of effect principle in the United States to determine whether the EC competition law can be applied to the monopolistic behavior outside the EC by looking for the appropriate connection point,thus establishing the unique connection point theory,which has a wide range of international influence.Extraterritorial application conflict of anti-monopoly law refers to the conflict between countries which is caused by the competition among countries to apply their own anti-monopoly law to the same act of excluding or restricting competition in the international community.The causes of this conflict are the opposition between extraterritorial jurisdiction and national sovereignty,the differences in economic level and legal culture of different countries,and the excessive maintenance of national interests.The conflict can be divided into legislative conflict,law enforcement conflict and judicial conflict.The means to resolve the conflict include bilateral,regional and multilateral cooperation.The existing system of extraterritorial application of antimonopoly law in China still needs to be improved in solving the conflict of extraterritorial application of antimonopoly law,and it is insufficient in regulating transnational monopoly behavior,so it should be improved from both international and domestic aspects.At the international level,first of all,bilateral agreements should be used instead of memoranda of understanding to legally confirm the cooperation achievements.Second,we should try to establish a unified anti-monopoly organization in the Asia-Pacific region.Finally,we should actively participate in the multilateral negotiations of the World Trade Organization to promote the formation of a unified international anti-monopoly law.At the domestic level,firstly,the principle of extraterritorial application of China's anti-monopoly law should be adjusted.Secondly,it should prevent other countries from abusing the extraterritorial effect of the anti-monopoly law.Finally,the ability of Chinese industry associations and enterprises to respond to foreign anti-monopoly law enforcement and anti-monopoly litigation should be improved.