STREAM READINGS

IGLP SCHOLARS WORKSHOP | BANGKOK, THAILAND | JANUARY 6 - 10, 2019

COMPARATIVE LEGAL POLICY IN ASIA –

REGULATION OF MARKETS AND ENTERPRISES

OVERVIEW

STREAM READING | OVERVIEW

Comparative Legal Policy in Asia – Regulation of Markets and Enterprises

Faculty• Hisashi Harata (Japan) The University of Tokyo• Margaret Woo (United States) Northeastern University

DescriptionAsia has always presented itself as a challenge to the western liberal legal order. Recent rise in nationalism and the race to market dominance, however, have led to movements towards illiberal law around the world and also in Asia. This stream will examine some of these trends with a Case-Study on antimonopoly law and policies.

This stream deals with legal policies on markets focusing on antimonopoly laws in East Asia. Anti-monopoly laws are generally deemed by the West as one of the main tools for regulating global cartels. By preventing collusive practices, anti-monopoly laws are said to promote fair competition for the benefit of consumers. But cartels can and actually have different roles in relation with national economic policies. In some countries such as China cartels work in coordinating and developing the economy under the direction of political powers. Anti-monopoly laws then can diverge among national legal systems in terms of their actual role and function.

In addressing these issues, our focus will be to take an inward and outward perspective of Antimonopoly law. In the first session, this stream examines how anti-monopoly policies can often be in tension with domestic industrial policies, and how anti-monopoly serves the more political goal in legitimizing central authority. As inward analysis, we will focus on contextualizing Antimonopoly Law and its real role and function in each jurisdiction.

In the second session, we take a more outward looking perspective to see how and if national antimonopoly laws can check global cartels overreaching national boundaries. As outward analysis, we address the issue of how to constrain cartels closely connected and/or controlled by sovereign powers. As such, we also ask whether the “western” frame of rule of law that emphasizes a limited government and the public/private divide fits the East Asian model. Indeed, we ask whether East Asia’s “illiberal” anti-monopoly law should instead by viewed as an alternative model.

We take as our main case-study, Animal Science Products, Inc., et al. v. Hebei Welcome Pharmaceutical Co. Ltd, et. al. (commonly known as the Vitamin C case), brought against Chinese pharmaceuticals for anti-trust violations in the U.S. federal courts. The Chinese defendants claimed the Foreign Compulsion defense — that they should be shielded from liability because they had been ordered by the Chinese Ministry of Commerce to set a price floor for vitamin C exports. This case also calls into consideration issues of comity in cases of global cartels, and the extent to which one foreign government’s statement about its own laws should be conclusive in another country’s courts.

TABLE OF CONTENTS

STREAM READING | TABLE OF CONTENTS

Comparative Legal Policy in Asia – Regulation of Markets and Enterprises

Eleanor Fox, “Economic Development, Poverty and Antitrust: The Other Path”, Southwestern Journal of Law and Trade in the Americas, Vol. 13, No. 2, 2007, pp. 211–236 (excerpts, pp. 1-6).

Jingmeng Cai, “Public Antitrust Enforcement of Resale Price Maintenance in China: A Crusade or Discrimination?”, Brooklyn Journal of International Law, Vol. 42, No. 1, 2016, pp. 1-64 (excerpts, pp. 13-21).

Brief of the Ministry of Commerce of the People Republic of China in Support of the Defendants’ Motion to Dismiss the Complain as Amicus Curiae, Animal Science Products Inc. et al. v. HeBei Welcome Pharmaceutical Co. Ltd. et al. (Vitamin C Antitrust Litigation), Case No. 16-1220, in the Supreme Court of the United States.

Mark Tushnet, “Rule by Law or Rule of Law?”, Asia Pacific Law Review, Vol. 22, No. 2, 2014, pp. 79–92 (excerpts, pp. 80-85).

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