Study On Divesture Remedy For Concentration Of Undertakings

Among the anti-monopoly control measures to concentration of undertakings,divesture remedy, as an “intermediate mechanism” as well as “soft measure”,modifies the “allowance or forbiddance” binary choice intervention model in amoderately manner. Comprehensively considering the positive effects and negativerisks of concentration of undertakings, it regards as a best measure to seek mostbenefits while avoiding most negative risks. Currently, under the economicglobalization and blossom of concentration of undertakings, the divesture remedybecomes favorable and increasingly widely adopted by anti-monopoly academia andmerger control authorities all over the world. Without exception, China has alsointroduced several relevant administrative regulations and adopted this measure inpractice. This thesis, by theoretical analysis and Sino-foreign comparative studies,discusses subject-related issues and object-related issues in divesture remedy forconcentration of undertakings, and finally comments China’s regulatory and practicalstatus quo so as to provide several reasonable suggestions.In addition to the Preamble and Epilog, the main parts of this thesis are dividedinto four major parts:The first part focuses on the basic theory of the divesture remedy forconcentration of undertakings. The thesis firstly introduces the “double-edged” effectsof concentration of undertakings, and then discusses the necessity of anti-monopoly merger control and divesture remedy, as well as brings in relevant definition, featuresand so on. Secondly, this thesis analyzes three theoretical connotations in divestureremedy, i.e. efficiency gaming, settlement for win-win and public-private equilibrium,from the aspects of industrial organization theory, democratic consultation theory andequilibrium theory. Finally, by comparing with the other two measures inanti-monopoly merger controls–forbiddance and behavioral remedy, this thesis findsout the advantages of the divesture remedy which is to maximize the individualefficiency and minimize the regulatory burden.The second part of this thesis mainly focuses on analyzing the issues with respectto relevant subjects involved in divesture remedy. Through learning latest relevantguidelines in developed countries, this thesis analyzes three aspects issues, includingbut not limited to the criteria and selection mechanism for the qualified buyer, thetrustee system and independence and the position of anti-monopoly authority indivesture remedy for concentration of undertakings, seeking to find out balance andrestraint mechanisms for multi-parties in divestiture remedy.The third part focuses on analyzing the issues with respect to divested objects indivesture remedy. This thesis firstly introduces the selection standard for “divestiturepackage” in the United States and European Union, so as to clarify the basicrequirements for qualified divested objects. Secondly, with respect to the specificscope of divested objects, the thesis analyzes three kinds of important divested objects-independent assets or businesses, necessary human resources, and productioncapacity. Finally, through relevant cases in the United States and European Union, thethesis finds out the original reason and values of the addition mechanism, as well asanalyzes the “Crown Pearl” mechanism in developed countries to clarify its positiveeffect and negative impact.The fourth part mainly analyzes the status quo in China regarding divestureremedy for concentration of undertakings, thereby provides several relevantsuggestions accordingly. Firstly, this thesis systematically combs relevant regulationsand practices in China to set up a foundation for following comments and suggestions.After that, basing on the analyses at the first three parts hereof, the thesis commentsthe subject-related issues and object-related issues regarding China’s divestureremedy in two separate section. Finally the thesis provides several suggestions withrespect to the criteria and selection mechanism for the qualified buyer, the trustee system and independence and position of the anti-monopoly authority and selectionstandard and scope of divested objects for China’s divesture remedy for concentrationof undertakings.