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Reporter with CCTV News Center: Hello, Director-General Wu, as it is known that the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce are jointly responsible for the enforcement of anti-monopoly, but many are still not clear about the division of work among these three institutions. Would you please brief on the work division of these three organizations, especially the work of the Ministry of Commerce?
Shang Ming: Thank you for your question, I would like to make a general dissemination here.
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In legal sense, the Anti-monopoly Law governs the following three behaviors: the first is the conspiracy of enterprises: if two enterprises negotiate the prices or the exchange terms, it will do harm to the market as well as the consumers. The second is that the enterprise abuses market dominance. The premise is that the enterprise is huge with power for market control, or otherwise, it would never be possible to use such a position.
The third is mergers and acquisitions, or concentration of business operators.
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What matters is still that whether the above two results may be incurred from mergers and acquisitions of enterprises. What we focus on is whether there is any unilateral effect. If an enterprise becomes huge, whether it can do anything as it wants, or whether it will abuse the market dominance or produce coordination effects to facilitate its conspiracy with other operators will be decided by itself.
In most countries, these three behaviors are monitored by a supervision department. However, as required by our national conditions, we set up three supervision departments. That is the problem. But it is certain that these three departments have clear division of work. The National Development and Reform Commission is responsible for price monopoly.
All the price monopolies shall be controlled by it except concentration of business operators. Concentration of business operators shall be supervised by the Ministry of Commerce. Price monopoly includes Carte monopoly agreement or enterprise conspiracy and abuse of market dominance.
Between the two behaviors under the administration by the National Development and Reform Commission, the behavior unrelated to price falls into the authority of the State Administration for Industry and Commerce. Would you please brief the current progress? In addition, Telecom and Unicom submitted their renovation plans in December of last year and January of this year respectively. Is there any conclusion about their anti-monopoly behaviors, and how is their progress? Shang Ming: Generally, I will not speak too much about specific cases.
I think we should not draw up conclusions about pending problems, but for the case you just mentioned, I have little knowledge of it. Currently, we are reviewing the case relating to merger of Tesco by Vanguard. This involves supermarket retailing. You can also refer to such cases of foreign countries. The review would be time consuming, because it is complex with thousands of products involved. Now we are in the process of review. We need a lot of time to collect evidence. We will analyze the evidence to assess the market competition. In the process of review, we would like to share with or disclose to you the information in appropriate manners.
The second case you just mentioned is about communications. I just heard it from you, and we have not received any application for mergers and acquisitions yet. The Third Plenary Session of the Eighteenth National Congress proposes to give full play to the decisive role of market in resource allocation and try to eliminate market barriers.
I would like to ask that what the Ministry of Commerce has done to maintain a fair market competition order. And my second question is for Director-General Shang. The monopoly of sate-owned enterprises is criticized by many people now. What do you think are the difficulties for the anti-monopoly review of state-owned enterprises, and what further measures may take?
Yao Jian: The Third Plenary Session of the 18th Central Committee put forward to build a rule-by-law business environment, make endeavors to eliminate regional blockade and industrial monopoly, and establish a unified, open and orderly-competition market system.
The Ministry of Commerce links both domestic and international markets. For ten years since its founding, the Ministry of Commerce has been constantly advancing the market-oriented reform of Chinese economy, including forcing the reform through opening to the outside world and forcing to further deepen the domestic market system. In respects of improving the market system and building a market-oriented business environment, I give main considerations to the following:.
First, strength the rule-by-law construction, including the implementation of Anti-monopoly Law as we have just mentioned, the implementation of Foreign Trade Law, and the implementation of three laws on foreign investments. Recently, we are still continuously pushing the legislation of domestic market and improving domestic laws and regulations. We can see from the implementation of Anti-monopoly Law that, the implementation of a series of laws and regulations plays an increasingly important role in building a rule-by-law business environment in China.
Second, the Ministry of Commerce takes the lead to carry out special rectifications on such prominent problems as regional blockade and industrial monopoly in concert with relevant departments of the State Council. In last December, we particularly issued the Work Plan for Eliminating Regional Blockade and Industrial Monopoly which deployed tasks in six aspects regarding the existing prominent problems.
First, implement and improve the consolidated taxation policy for trans-regional enterprises. Second, solve the problem of discriminatory charging against non-local products or services. Thirdly, solve the problem of abusing administrative power by asking organizations or individuals to buy designated products or services. For instance, prior to administrative approval, some administrative departments may require enterprises to buy special service from a designated institution, like design service or agency service. Fourthly, solve the problem of setting up barriers against access of non-local products or outward shipping of local products.
Sixthly, focus on cleaning up a number of laws and regulations. Government departments at all levels have promulgated a great number of laws and regulations, especially department rules, imposing limitations on the formation of a unified market and the flow of goods among regions, which therefore should be cleaned up. Through work in these six aspects, we hope to further advance the improvement of domestic market. Last year, national administrative law-enforcement organs put , cases on record, and public security organs solved 59, cases, involving more than RMB 40 billion.
Fourthly, review the trade policy compliance. The concept of trade policy compliance is derived from WTO rules and our accession commitments. The last review took place in , when WTO members raised more than questions to China. The fifth trade policy review will be held in this July. The relevant preparatory work is under way.
Presently, WTO members show more concerns over the following aspects regarding compliance: first, industry support means, such as the PV industry; second, framework of subsidy policies, for instance, quite a number of provinces and cities in China will provide subsidies for a specific industry or event; thirdly, service market access; fourth, equal treatment to state-owned enterprises, private enterprises and foreign-funded enterprises.
Shang Ming: Problems relating to state-owned enterprises are frequently encountered in the anti-monopoly process both at home and international cooperation. First of all, how do you view a state-owned enterprise? First, in terms of system design, the Anti-monopoly Law and its supporting regulations contain no preferential terms for state-owned enterprises or foreign-funded enterprises; all enterprises shall follow uniform rules.
Second, during law-enforcement practices, we have several cases, including mergers between state-owned enterprises, mergers between state-owned enterprise and other enterprises, and others mergers involving state-owned enterprises. These cases are complex, some of which can be sorted out, but in real sense, cases involving foreign-funded enterprises might account for a higher proportion; this is a result of the large scale of foreign-funded enterprises or a greater number of declarations for concentrations of business operators and cannot reflect the issue of preferential treatments to certain enterprises.
We make no exception in our inspections and decisions. Third, deal with illegal behaviors, mainly referring to failure in declaration for concentration of business operators by law. Over the past five years of law popularization and case trial, some illegal behaviors of enterprises in whatever nature were reported, so in the future process of dealing with declaration failure, we will have specific regulations and deal with illegal behaviors of enterprises in whatever nature in accordance with the same law.
Merger Control in Post-Communist Countries
Large transnational corporations, with a history of years or even years, grasp more knowledge of concentration of business operators or the whole anti-monopoly law and maintain continuous communication with anti-monopoly authorities, while some Chinese enterprises just get acquainted with this system and have very limited knowledge in this respect. Therefore, in the future we will spend quite some time or energy on promotion and training activities for enterprise of all kinds.
We will try to prevent erroneous judgments or declaration failures caused by poor knowledge of law. Reporter with the 21st Century Business Herald: The first question is that, after the launch of anti-monopoly summary procedures, enterprise burdens will be lightened; however on the other hand, if the standard settings are unreasonable, they will probably cause certain damages to market competition; you have introduced four categories of simple cases, where standards used may be somewhat different from abroad, so can you briefly introduce several considerations on reasonability of these standard settings.
The second question is that, as you mentioned structural remedies and behavioral remedies when talking about additional restrictive conditions, can you briefly introduce their differences, future operations and supervision considerations? Shang Ming: We have repeatedly answered these questions, but there are always some new situations every time.
Speaking of summary procedures, they should be based on our own law-enforcement practices. Previously, the same procedures applied to all cases. As our administrative resources are limited, only representing a fraction of overseas regulatory authorities, we need to sum up how to use limited law enforcements for more important cases. We should analyze these cases and determine those cases to which the summary procedure may apply based on five years of law-enforcement practices.
Second, we have developed an easy standard by reference to foreign practices. EU provides the most typical standard, while America has no specific standard but relies upon experiences of investigators. We take a cautious attitude, and practices prove that, no competition will occur when putting these cases into simple cases.
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In order to ensure no problems exist in simple case review, we have the second insurance valve, i. So here, I would like to specify that, concentration of business operators cases involve anti-monopoly issues; even if the small market share is far from monopoly, there may be other problems that should be handled in other procedures. As to structural remedies, we have exchanged ideas with many regulatory authorities. In their history, there also have been a variety of remedy measures, dominated by structural remedies and supported by behavioral remedies, including the combined use of structural remedies and behavioral remedies.
Currently, we are still at the early stage of law-enforcement practices. The case handling gives more considerations to specific situations of each case, which can effectively reduce or eliminate damage to competition. In the process, we will inform the acquirers of our concerns and competition issues that we think may happen, and the parties shall put forward solutions.
Therefore, the existing solutions are largely provided by acquirers themselves. As mentioned by Professor Wu, innovations of several cases lie in business separation after acquisition. We rely on our own strength for supervision, and meanwhile, employ some capable regulatory institutions for supervision on behaviors according to their commitments. Thank you! Reporter with the Reuters: Since the Ministry of Commerce put forward several additional restrictive conditions when reviewing some acquisitions of international companies, such as the Glencore case, in the future, if necessary, will you continue to do so when reviewing acquisitions of foreign companies?
Xu, Director-general of the Anti-monopoly Bureau of National Development and Reform Commission, put forward the possibility of designating a specific institution in charge of the anti-monopoly work, what do you think of this possibility?