Research On Behavioral Remedies In ICT Industry Mergers And Acquisitions

The frequent application of conduct remedies in ICT sector shows that the behavioral remedies of merger control in ICT industry may have certain special characteristics.This article starts with the characteristics of the ICT industry,analyzes the particularity of the merger control in ICT industry,further explores the legislative and law enforcement issues related to the application of behavioral remedies in the ICT industry.Overall,the article is divided into three sections:In the first part,the article defines the scope of the ICT industry,describes the ICT market characteristics,and discusses the particularity of merger control in ICT industry.It mainly analyzes the dynamic competitive attributes,network effects,technical barriers and path dependence characteristics of the ICT industry.At the same time,it compares the traditional industries and illustrates the distinctiveness of the merger control in ICT industry with the competition effect assessment,conduct remedies' design and implementation.The second part mainly discusses the current situation and problems of the application of behavioral remedies of the ICT industry in China.First,the competition authorities does not consider the characteristics of the industry adequately,resulting in an incomplete assessment of competition damage,increasing the “over-intervention” risk.Secondly,starting from the merger decision by authorities of China in ICT sector,compared with the decision to dismiss behavioral remedies,combined with overseas legislation and law enforcement experience,it is proposed that China's competition authorities abuse some of the behavioral remedies,especially “Business Separate” clause.Finally,based on the fact that China 's competition authorities apply behavioral remedies based on opaqueness,lack of effectiveness evaluation of behavioral remedies,and consider the characteristics of the ICT industry that are more professional and usually apply complex conduct remedies,the issues of insufficient disclosure of case information and imperfect supervision system were also raised.The third part puts forward suggestions for improving the behavioral remedy system from three aspects: regulation improvement,design and supervision of behavioral remedy.Based on the existing rules of EU,US and China,and in combination with Chinese merger cases,trying to review the regulation about the conduct remedies of the merger control in ICT industry.In the aspect of conduct remedies design,the author tries to provide possible standards for the determination of access remedies in the ICT industry merger review,and recommends apply “Business Separate” clause and conduct remedies that directly control the results of mergers cautiously.With regard to the supervision of conduct remedies,the supervision efficiency could enhanced by strengthening the disclosure of information on the implementation of conduct remedies,gradually introducing arbitration clauses of “set the price”,and improving the supervision trustee list system.