Divergence then and now: What does the U.S./EU experience tell us about convergence with MOFCOM?

While the globalization of antitrust—something for which Chairman Kovacic deserves significant credit—has brought competitive markets to consumers worldwide, it has also given jurisdictions around the world significant influence over the conduct of increasingly global firms. In the merger context, each reviewing jurisdiction essentially has veto power over global conduct, which can be abused to distort competition, potentially in pursuit of protectionist goals.

Recent decisions by China’s MOFCOM highlight these dangers. Acting alone among jurisdictions, MOFCOM has imposed behavioral remedies that depart from international norms and sound economic principles, which, at least in some cases, seem designed to benefit Chinese customers and consumers at the expense of foreign consumers and competitors.

This chapter seeks to put MOFCOM’s divergence from other agencies in context by considering another high profile divergence—the U.S./EU divergence reflected in the Boeing/McDonnell Douglas and GE/Honeywell decisions. We consider how the divide between MOFCOM and the rest of the world today differs from that earlier split, and also consider what we can learn from that convergence as we pursue convergence with MOFCOM.

[1] 1. The globalization of antitrust enforcement is a great success story, and one for which Chairman Kovacic deserves much credit. Today, more than one hundred countries have antitrust laws. [2] In the last five years, three major emerging economies have adopted new competition law regimes: China, where a new Antimonopoly Law (“AML”) came into force in 2008; [3] India, where a competition law passed in 2002 finally came into effect in 2009; [4] and Brazil, where a suspensory merger control regime became effective in May 2012. [5] Through the efforts of leaders like Chairman Kovacic, the expansion of antitrust law around the world has promoted competitive markets and facilitated increased competition that has directly benefitted consumers. [6] 2. But the globalization of antitrust

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