On February 2, 2016, the National Development and Reform Commission ("NDRC") released the Draft Guidelines on Commitments by Undertakings in Antitrust Investigation ("Draft Guidelines") on its official website, seeking public comments. The commitment scheme originates from Article 45 of the Anti-monopoly Law of China ("AML"), which provides, "with respect to the suspected monopolistic conduct of an undertaking under investigation by the Anti-monopoly Law enforcement Agencies ("AMEAs"), if an undertaking commits to adopt specific measures to eliminate the consequences of its conduct within a certain period of time, which is accepted by the said authorities, the said authorities may decide to suspend the investigation."
The nature of the commitment scheme under the AML is a settlement reached between undertakings under investigation and AMEAs based on commitments. Considering the fact that this scheme may save law enforcement resources, encourage undertakings under investigation to cooperate, and introduce measures to eliminate anti-competitive affects, the formal process set out in the Draft Guidelines could be widely used in antitrust investigations in China. Since the result of the commitment scheme is to suspend the investigation rather than levy potentially significant fines, it is necessary for undertakings to understand how the commitment scheme works in China.
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