By Josie Shi and Amin Amirkia

On July 27, 2011, the US and China signed an antitrust memorandum of understanding (“MOU”) in an effort to promote communication and cooperation among the antitrust agencies of the two countries. The MOU was signed by the US Federal Trade Commission and Department of Justice, together with China’s Ministry of Commerce (“MOFCOM”), National Development and Reform Commission (“NDRC”), and State Administration for Industry and Commerce (“SAIC”).
 

China’s antimonopoly enforcement responsibility is divided among MOFCOM, NDRC and SAIC; MOFCOM handles the review of mergers and acquisitions, the NDRC enforces laws with respect to price-related anticompetitive conduct, and the SAIC is responsible for non-price related anticompetitive conduct.

The MOU does not change the existing antitrust laws of either country, but rather aims to enhance the effective enforcement of competition laws by “creating a framework for long-term cooperation.” The MOU provides for periodic high-level dialogue among the MOU’s signatories, for communication and cooperation between individual US and PRC agencies, and lists specific areas for cooperation, including:

  • keeping each other informed of significant competition policy and enforcement developments,
  • enhancing each agency’s capabilities with appropriate activities related to competition policy and law such as training programs, workshops, study missions and internships,
  • exchanging experiences on competition law enforcement,
  • seeking information or advice from one another regarding matters of competition law enforcement and policy,
  • providing comments on proposed changes to competition laws, regulations, rules and guidelines,
  • exchanging views with respect to multicultural competition law and policy, and
  • exchanging experiences in raising awareness of competition law and policy.

Although broad in nature, the MOU is expected to usher in an era of enhanced cooperation among the US and China’s antitrust agencies.