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• Compliance and Penalties. A law without teeth exists in name only. It remains unclear whether the enforcement duty lies primarily with MOC and/or SAIC, or whether self-compliance will be relied upon for enforcement. The M&A Rules should specify the legal consequences for the failure to file such an antitrust report.
• Private Causes of Action. This is the key for solving the mentioned problems, but now the administrative authorities remain the gatekeepers for complaints by private parties about anti-competitive behaviors. The existing antitrust rules or the future competition law should be open to the private antitrust actions and make the parties concerned take place of the government to be the protagonists of the campaign.
• Role of administrative agencies to be limited and that of courts to be strengthened. The administrative agencies have egregious discretion over many vital fact findings while the courts have very limited authority over competition practices and antitrust matters. Along with the improvement, independence and sophistication of China''s judiciary, the rules should strengthen the power of courts to oversee and limit the discretion of the administrative branch.
Conclusion:
A relatively complete legal system on M&A has been established in China. The newly launched anti-competitive practice rules facilitate the normal M&A deals while obstacles still exist in many aspects.
Almost all the rules on M&A, especially the cross-border ones, are still in a very preliminary level without any further implementing provisions; even the governing bodies are not very clear of their powers and responsibilities. Much is left unresolved for the parties and authorities concerned. Furthermore, many of the existing provisions needs further clarification, especially those relevant to the state-owned assets management and valuation, payment and employment.
China has stepped forward in modifying its competition rules, which turns to be great improvement of its legal system. But Chinese governmental agencies and companies all need time to accumulate experiences so that they can effectively operate and be accustomed to the new mechanism.
As a famous saying goes, all including the M&A legal system and the competition rules are far from end but just at the end of beginning.
【参考文献】[Referential Materials]
1. See United Nations Conference on Trade and Development（‘UNCTAD’）, World Investment Report 2000：Cross-border Mergers and Acquisitions and Developments (New York and Geneva: United Nations, 1998), pp.202-204.
2. See Freshfields Bruckhaus Deringer, research report(April 2003):Regulating M&A activity in China, on: www.freshfields.com/practice/corporate/publications/pdfs/5361.pdf(Jan.2004);
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