Highlights of the Draft Amendment to China’s Anti-Unfair Competition Law: Abuse of a Comparatively Advantageous Position
On February 25th 2016, the State Council published the Anti-Unfair Competition Law (Draft Amendment) (the law hereinafter the “AUCL”, the draft amendment hereinafter the “Draft”) for public comments. Certain issues have arisen since the implementation of AUCL in 1993, for example, new types of unfair competitive behaviors have been under-regulated and the penalties do not have enough deterrent effects. Also, since 2008, the enactment of the Antitrust-Monopoly Law (“AML”) has resulted in overlaps and inconsistent standards of application.In terms of amendments that have some bearing on the AML, the Draft puts forward two behaviors (abuse of comparatively advantageous position and unfair competition behavior on the internet), and deletes or modifies four behaviors that fall within the regulation of AML (exclusive dealing by public utilities, abuse of administrative power, below-cost pricing and tying). This article elaborates on abuse of a comparatively advantageous position, sets out the differences and similarities between abuse of a comparatively advantageous position and abuse of a dominant market position under the AML, and illustrates the practical implication of the Draft on the businesses.