Brooklyn Journal of International Law


Jingmeng Cai

First Page



In recent years, a growing number of international observers and companies have expressed concerns that China may be using its new antitrust laws to discriminate against multinational companies. China’s antitrust decisionmakers, however, have taken pains to deny such criticisms. This article focuses on Resale Price Maintenance (RPM) to argue that these concerns are not always based in reality. After examining almost all of the decisions made public regarding RPM by the Chinese antitrust agency, the National Development and Reform Commission (NDRC), this article analyzes the following three factors that have shaped how the NDRC enforces antitrust laws in China. First, as the central factor, domestic incentives drive the NDRC to target multinationals in order to generate greater social impact, alleviate public dissatisfaction, and efficiently meet political or regulatory goals. Second, as the external factor, foreign cognitive influence further results in the uncertainty and inconsistency of public antitrust enforcement because different antitrust agencies in China have different perceptions of foreign antitrust laws and enforcement experience. Third, as the internal factor, the impact of traditional Chinese culture is implicit, but steadier and more enduring than the other factors. When these three factors function collectively, multinational companies are easily targeted by the NDRC. Therefore, such “discriminatory” enforcement is not intended, but it is a result of flaws in the antitrust enforcement system. This article concludes with suggestions for how China can dispel such negative impressions and improve the transparency and consistency of the agency’s decision-making processes