In recent years, the anti-monopoly storm has swept the world, especially the anti-monopoly supervision in China and the United States has attracted attention. Focusing on the anti-monopoly issues of public concern, the Beijing News invited Li Qing, vice president of the China Economic System Reform Research Association (former deputy director of the Anti-Monopoly Bureau of the National Development and Reform Commission and deputy director of the Price Supervision and Competition Bureau of the State Administration for Market Regulation), William Kovacic, professor at George Washington University and former chairman of the Federal Trade Commission (FTC), and Shi Jianzhong, vice president of China University of Political Science and Law, to conduct an in-depth dialogue.
At present, the rise of technology giants has triggered a re-examination of the purpose of competition law, what should be the purpose of antitrust and competition policy? In this regard, Li Qing believes that the importance and powerful function of the Anti-Monopoly Law does not mean that the function should be comprehensive. The Anti-Monopoly Law is not a bottom-up law, it is mainly responsible for supervising the most core issue in the market economy - competition issues.
Kovacek held a similar view, saying that antitrust law could not be used to solve all problems, otherwise the law would lose its original meaning. For how to deal with the challenges of the digital economy, he believes that two kinds of integration are needed, including integration across policy areas – choosing the right tools, and law enforcement to work with research institutions and think tanks.
Shi Jianzhong Beijing News reporter Ji Zhe photographed
The digital age
The Anti-Monopoly Law cannot be used to solve all problems
Shi Jianzhong: In the preface to Twelve Years of Antitrust, Kovacek raises several questions that have been debated around the world – the rise of tech giants has led to a re-examination of the purpose of competition law, should competition law emphasize the protection of citizens' interests as buyers of goods and services, or should it have more diversified value goals, such as focusing on the interests of workers and small businesses, communities, and public governance? On existing antitrust tools – focusing on case-by-case solutions is sufficient to address cross-cutting issues across multiple policy areas, including antitrust, consumer, and privacy protections.
In fact, there is controversy in China over whether the legislative purpose of the AML should be a monistic goal or a pluralistic goal. Some people believe that the purpose of China's anti-monopoly law is too diverse and may cause disputes in practice. What is your view on the antitrust goals, how to deal with the challenges posed by the digital economy to existing anti-monopoly regulation?
Li Qing: First of all, I believe that the core goal and positioning of anti-monopoly is to solve the problems that affect competition in the market economy. Everyone says that the Anti-Monopoly Law is the constitution of the market economy and a "nuclear weapon" that cannot be easily sold. I personally believe that the legislative purpose and core positioning of the Anti-Monopoly Law is to protect the market competition mechanism from functioning, and the competition mechanism cannot be damaged, and the restriction of competition cannot be reduced or excluded. However, the importance and powerful function of the Anti-Monopoly Law does not mean that its functions should be comprehensive, and it cannot be said that the Anti-Monopoly Law is like an all-round player, in solving China's economic problems. In fact, personal privacy protection, consumer rights protection, etc., these are not the core responsibilities that the Anti-Monopoly Law must bear. Or, to put it more colloquially, there is a bottom-up clause in the law, but the Anti-Monopoly Law is not a bottom-up law, it is mainly responsible for supervising the most core issue in the market economy - competition issues. Of course, before the laws related to privacy, security, and consumer rights and interests protection are promulgated or not perfect, the Anti-Monopoly Law can be used to restrain market entities, but in the case of more and more clear and clear relevant laws, it is better for each law to be responsible for its own responsibilities.
Second, can the value objectives of the AML be diversified? I think there can be multiple value goals, but the premise is that these value goals can be self-consistent and coordinated with each other, and the whole law must reflect these value goals. Taking China's Anti-Monopoly Law as an example, Article 1 of Chapter 1 clearly stipulates the purpose of the legislation - "This Law is formulated for the purpose of preventing and stopping monopolistic behavior, protecting fair competition in the market, improving the efficiency of economic operation, safeguarding the interests of consumers and the social public interest, and promoting the healthy development of the socialist market economy." In the latter clauses, these clauses are gradually or refined.
Third, after the revision of the Anti-Monopoly Law, I think we should pay attention to two things: one is to refine the rules. Only fine-grained rules can solve the problem. The second thing is that it is recommended to study the issue of local legislation. The Chinese market is vast, and there may be certain differences between different regions, and consideration can be given to giving more autonomy to local governments in legislation. In fact, we can see that each state of the United States and the member states of the European Union have their own legal provisions, which have played a very good role in solving local competition problems. In the long run, China could also study giving local legislative power to antitrust.
Li Qing, a reporter from the Beijing News, photographed by Ji Zhe
Courtesy of William Kovacik interviewee
The solution
There is a need for both cross-policy areas and cross-sectoral integration
Shi Jianzhong: The main responsibility of the Anti-Monopoly Law is to maintain fair competition and regulate the order of market competition. Therefore, the Anti-Monopoly Law should not be allowed to assume a task beyond the main responsibility and play a very comprehensive legal role. This is like the Olympians, if forced to participate in all competitions, it is estimated that it is difficult to become a world champion. If the Antitrust Law becomes an all-rounder, it will not better achieve its specific goals. This means that when the functional positioning of the Anti-Monopoly Law is not clear, there will be confusion, and the clear positioning can be better implemented and complied with. What does Kovacik think about this?
WILLIAM KOVACIK: In general, we have to think a lot about what are the right tools and what are the right mechanisms that can help us solve some of the policy problems that we see. I fully accept the view that we cannot solve all problems with antitrust law. Now it's a stage where if you want it to solve all the problems, the law loses its original meaning, loses its analytical context, and becomes unpredictable. I believe that competition authorities need to innovate and think about where to go. Ms. Li Qing mentioned that local authorities should also have the ability to make some laws, and I think this is an innovative idea and solution. There are other solutions to the problem that may not fall within the framework of antitrust law.
I did an experiment in the UK and I found it very interesting. The UK has a mechanism that allows antitrust authorities to discover and correct monopoly problems, but no longer relies on some concepts in antitrust law. This antitrust authority is actually a research institution, and they can take a step back and think, is this a problem caused by government intervention? Is it due to other policies or market structures? On this basis, to correct the problem, you can also go to other government departments according to the principle of fair competition review, and tell him, "What you have done has caused problems, and I suggest that you change the policy."
I find this mechanism attractive because it gives the authorities the ability to ask the fundamental question of where the barrier to competition really comes from, and then think about the solution, and the solution does not need to just apply some concepts within competition law, but can have some very innovative ways. I think this line of thinking is very helpful for us to jump out and look at the problem and understand the reasons behind it from a broader perspective.
In addition, Ms. Li Qing mentioned two important policy challenges. One is to choose the right tools, we need to identify all the policy tools and coordinate them well. Solutions to these problems may include policies in several separate areas, such as consumer protection, data-related policies, and competition law policies. Globally, people are also beginning to realize that for the problem of large enterprises, there is a need for coordination between different government agencies and different laws, and we are now seeing more coordination and cooperation.
I am a member of the UK Market Competition Authority and I have noticed that they are now working hard to work with data protection authorities and telecommunications regulators, as well as actively building relationships with other government agencies, sometimes across sectors to find collaborative solutions. Competition law itself is not necessarily always the only right choice, nor is it always the best option, and it may sometimes be the better option for other policies.
Second, in the field of science and technology, companies are very dynamic, technology is also in dynamics, evolving every day, the business environment is basically changing every day, this dynamic and evolution makes law enforcement departments face challenges. Law enforcement needs to be fully aware of the current situation in order to make better policy choices. That's why it's important for governments to work with research institutes and think tanks, which I think can help competition authorities understand the current business environment and develop the best policy.
So I think there are two kinds of integration, the first is cross-policy integration, and the second is cross-sectoral integration, in cooperation with academic institutions.
Shi Jianzhong: With the development of the digital economy, especially after digital technology enters commercial applications, the situation may become more complicated, some problems are real problems, some problems are false problems, so we must have the ability to judge. In addition, when it comes to how to choose policy tools, be sure to maintain a balance.
Beijing News reporter Hou Runfang Gu Zhijuan Editor Wang Jinyu Proofreader Zhang Yanjun Wei Zhuo