Availability of private enforcement in respect of competition law infringements and jurisdiction

Scope for private enforcement actions in China

Private enforcement under the AML:

Article 50 of the Anti-Monopoly Law (“AML”) establishes the basis for private enforcement under the AML, providing that a “Business Operator whose engagement in a Monopolistic Act has caused a third party loss shall bear civil liability according to “. Article 3 of the AML provides that, for the purposes of the law, Monopolistic Acts include:

i) entering into a “monopoly agreement” (which is defined as any “agreement, decision, or other concerted practice to eliminate or restrict competition, or other concerted behavior”, and includes both horizontal and vertical anti-competitive agreements); ¹

ii) abuse of a dominant position; ² and

iii) entry into a concentration which results in or could result in the elimination or restriction of competition in the market (i.e., mergers). ³

On its face, it would therefore appear that the AML opens the door to private enforcement against not just anti-competitive agreements and abuse of dominance, but also against mergers and other concentrations falling within the scope of the merger control provisions in the AML. The position on this remains uncertain. There has been some very limited commentary supporting this view. However, it is notable that no reference is made to the prospect of private action against mergers and other concentrations in the Provisions of the Supreme People’s Court on the Application of Laws in the Trial of Civil Disputes arising from Monopolistic Practices (“SPC Provisions”), which regulate private actions under the AML.

The SPC Provisions, issued by the Supreme People’s Court on May 8, 2012 and effective from June 1, 2012, give judicial guidance on the handling of anti-monopoly cases by the Chinese courts and were formulated in accordance with the AML, the Tort Liability Law, the Contract Law and the Civil Procedure Law of the PRC (“Civil Procedure Law”). The SPC Provisions allow for both stand-alone and follow-on private actions. ⁴  Claims may be brought in relation to Monopolistic Acts engaged in both within the PRC and outside the PRC, provided such conduct has the effect of eliminating or restricting competition in the domestic markets of the PRC. ⁵

Private enforcement under other competition-related laws:

There are a number of laws other than the AML that authorize private enforcement against anti-competitive conduct. These include the Bidding Law ⁶, the Price Law ⁷ and the Anti-Unfair Competition Law ⁸.

Private enforcement against administrative monopolies:

Chapter 5 of the AML prohibits administrative agencies and organizations tasked with the function of administrative public affairs from abusing their administrative powers, including by obstructing the free flow of goods between regions of the PRC, excluding or restricting Business Operators from outside the region from participating in local bids, discriminating between local Business Operators and Business Operators from other regions, forcing Business Operators to engage in Monopolistic Acts and formulating anti-competitive regulations. Although Article 50 of the AML appears not to extend to administrative monopolies, the SPC Provisions contemplate claims against public utilities or other Business Operators who are conferred by laws to process a dominant position. Claimants may also have a right of action against the relevant administrative agencies and organizations under Article 12(8) of the Administrative Litigation Law from May 1, 2015, which provides for suits by citizens, legal persons and other organizations where it is considered that the administrative organs of the State have abused their power to eliminate or limit competition.

Applicable limitation periods

The general statute of limitations for civil cases in the PRC is two years and applies also to AML and other competition related litigation. The limitation period runs from the date that the injured party knew or should have known of an infringement upon its rights and interests.⁹  However a claimant reports infringement to a competition enforcement agency, then the two-year limitation period is suspended in relation to claims that this claimant (and only this claimant) might have until such time the claimant does or should have become aware that the enforcement agency has either terminated the investigation or reached a decision as to whether an infringement has occurred.¹⁰

Similarly, it is possible for the claimant to stop the clock on limitation simply by writing a “demand letter” to the intended defendant. The only condition on the contents of a demand letter is that it clearly states the claims alleged. ¹¹  New limitation period shall be counted from the time such a letter is delivered to the other party.¹²

Finally, in the absence of specific rules under the Anti-Monopoly Law and other competition-related laws, the general rule is that the claimant’s right to commence an action shall lapse 20 years from the date that the infringing act occurred – regardless of whether the two-year period has begun to run or has been suspended due to lack of knowledge, an investigation or otherwise.¹³

Appeals

The Chinese judicial system has four levels: Primary People’s Courts, Intermediate People’s Courts, Higher People’s Courts and the Supreme People’s Court. In competition litigation, an Intermediate People’s Court generally serves as the court of first instance. ¹⁴ Each major court has an existing intellectual property division which is tasked with hearing competition cases. ¹⁵ With approval from the Supreme People’s Court, Primary People’s Courts may also have jurisdiction as the court of first instance. ¹⁶ Higher People’s Courts should exercise jurisdiction in cases with substantial influence on their respective jurisdictional regions. ¹⁷ Finally, in cases with substantial national influence, the Supreme People’s Court may serve as the court of first instance. ¹⁸

Regardless of the court of first instance, litigants have the right to one appeal to the People’s Court directly above the court of first instance. ¹⁹  The court of second instance then renders a final judgment. ²⁰ As a result, parties may appeal to the Supreme People’s Court only in cases originating in Higher People’s Courts. Chinese law does not provide for appeal to the Supreme People’s Court as of right. Though generally the court of second instance renders a final judgment, in some circumstances parties may obtain a rehearing under special proceedings. ²¹ As a result, parties may appeal to the Supreme People’s Court only in cases originating in Higher People’s Courts. Chinese law does not provide for appeal to the Supreme People’s Court as of right. Under PRC laws, appeals can be made on all points, including the facts, application of laws and procedure.

In the PRC, retrials can be initiated by the court or by the parties. ²² It is not uncommon for unsatisfied parties to apply for a rehearing. However, the People’s Court directly above the court granting the final judgment has to review the application and then determine whether to rehear the case. If a retrial is warranted based on the review, generally the upper-level court shall itself rehear the case. However, the upper-level court is allowed to designate the court granting the final judgment as the court charged to first rehear the case. ²³

Availability of class actions for infringement of competition law and/or damages in China

Chinese civil procedure does not create an official basis for class action litigation. However, relevant laws do provide for joint actions when one or both parties to a dispute consist of two or more persons. ²⁴ The parties to joint actions may appoint a “litigation representative” to represent the parties in all procedural matters. In cases with numerous or unascertainable claimants the court may issue a public notice requesting claimants to register with the court and to elect a litigation representative. ²⁵ A judgment of the court with respect to registered claimants applies to all future registrants. ²⁶ In such cases, the Civil Procedure Law provides (without detailed specifications) that the object of the claims should fall into the same category, and that the final judgment in such an action applies to all claimants registered. If any party not registered to the action files a similar claim within the statute of limitation, it will also be bound by the final judgment in the joint action case. The laws do not address what might happen if an unregistered claimant objects to being bound by the joint action judgment.

Lawyers have used this “litigation representative” method to simulate common law class action law suits. Theoretically, litigants in a competition damages case could employ this mechanism but it has not yet been tested in this context. It is important to note, however, that the lawyers involved are subject to the scrutiny of both the All China Lawyers Association (“ACLA”) and the government in their conduct of the litigation. The ACLA has released guidelines regulating the behavior of lawyers who attempt to organize class actions. Guiding Opinions of the All China Lawyers Association on the Handling of Class Action Cases by Lawyers, “Guiding Opinions”). The Guiding Opinions define class action as joint action litigations or non-litigation cases (such as mediation, arbitration or administrative review) based on the same or similar facts or legal issues with more than 10 claimants. ²⁷ In such cases, the Guiding Opinions impose requirements on lawyers to report the case to the ACLA. ²⁸ The ACLA may convene meetings to discuss the lawyers’ handling of the class action cases ²⁹ and for highly influential cases, the ACLA will report to the Ministry of Justice, and may express its opinions to the public with a view to support the lawyers. ³⁰

Conduct of proceedings and costs

Burden of proof

For most claims, PRC courts require that the party making a claim bear the burden of proving its claims. ³¹

There are many exceptions to the general rule and the SPC Provisions provide for burden shifting in certain types of competition litigation. For example:

i) if a claimant seeks damages resulting from the existence of a horizontal agreement and has proven that the agreement exists, the burden of proof then shifts to the defendant to show that the agreement neither excludes nor restricts competition; ³²

ii) in abuse of dominant position disputes, the claimant bears the burden of showing that the defendant holds a dominant position; ³³ and

iii) if a claimant brings an action against a public utility company or other entity with legally granted monopoly status, the court may make a judicial determination as to the defendant’s dominant position. ³⁴

Most commentators have concluded that, in essence, the SPC Provisions establish a presumption of dominance in respect of state-owned enterprises (“SOEs”).

The claimant may also present as evidence materials that the defendant has disseminated that claim dominance, such as public statements on a website. ³⁵ Once the claimant satisfactorily establishes that the defendant holds a dominant position and has abused it, the burden shifts to the defendant to justify the alleged abusive conduct. ³⁶

In the PRC, there is no specific standard of proof for competition cases. Article 73 of the Evidence Provisions provides that where both parties concerned produce contradicting evidence regarding the same fact but neither has enough evidence to rebut the other side’s evidence, the court must determine whose evidence prevails, taking the specific situation into consideration, and must then use the evidence that it considers prevails. Accordingly, customarily it is the principle of “on the balance of probability” that is adopted in civil cases in the PRC.

PRC law does not state whether competition authority decisions constitute binding evidence in private actions.

Joint and several liability of cartel participants

No explicit legal basis exists to claim joint and several liability in PRC competition litigation.

The Civil Code allows claimants to seek joint and several liability in limited cases of partnerships, joint ventures created between two or more enterprises, agency relationships and debtor-creditor relationships. ³⁷ The PRC Tort Law (“Tort Law”) also sets out certain categories of joint and several liability for joint tortfeasors. ³⁸ In such cases the claimant may elect some or all of the infringing parties to assume liability for the entire cause of action, after which the infringing parties may seek compensation for excessive payments among themselves.

Competition litigation does not explicitly fall into any of the enumerated categories for joint and several liability, and it is still untested whether claims for breach of competition law are to be treated as tortious, thus opening up the possibility of claimants seeking joint and several liability between the defendants. However, Art. 4 of the SPC Provisions provides that jurisdiction over competition disputes is to be determined in light of the actual circumstances of a case in accordance with the jurisdiction provisions of the Civil Procedure Law and relevant judicial interpretations regarding torts, contract disputes, etc. This provision therefore suggests that claims for breach of the AML can be either tortious or contractual in nature.

Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege

PRC civil procedure laws include an exhaustive list of categories of evidence that the courts may consider, namely documentary evidence, physical evidence, audio-visual materials, electronic data, testimonies of witnesses, statements of the parties, expert opinions and records of inquests. ³⁹

Generally, a party must provide evidence to support each of its claims, though in situations where a party cannot collect evidence for reasons beyond its control, that party may petition the court to investigate and/or collect the evidence. ⁴⁰ Consistent with inquisitorial court systems, the court also has power to initiate its own investigation. ⁴¹ This procedure for receiving court assistance in obtaining evidence does not create a US-style discovery system. Parties petitioning the court for assistance in collecting evidence must:

“clearly specify the basic information of the evidence, such as the name of the person investigated or the title of the entity, the dwelling place, the contents of the evidence to be investigated upon and collected, the reasons why the evidence needs to be investigated upon and collected by the People’s Courts and the facts to be proved.” ⁴²

This requirement serves to prevent general discovery requests leading to fishing expeditions.

Chinese law does not contain a formal mechanism for parties to follow-on litigation to compel production of evidence uncovered in enforcement authority investigations. Generally, when courts initiate their own investigation they will communicate with government authorities which may possess relevant information. The court does not, however, have power to compel government authorities to produce evidence for parties to a civil litigation.

On the other hand, Chinese citizens, legal persons (including foreign-invested enterprises) and other organizations may gain access to government records in accordance with the Regulations of the People’s Republic of China for the Disclosure of Government Information (“Disclosure Regulations”). The Disclosure Regulations do not include government enforcement actions and related evidence in their list of mandatory public disclosure, but Article 13 of the Disclosure Regulations permits the abovementioned parties to request other information based on special needs. If a government authority refuses to release information, the requesting party may commence administrative litigation in a People’s Court to overturn the refusal. ⁴³ In this manner it may be possible for parties to competition litigation to obtain access to information concerning private enforcement actions. However, the Disclosure Regulations explicitly prohibit the release of any information related to trade secrets without the consent of the trade secret owner. ⁴⁴
The SPC Provisions create a specific regime with additional safeguards for the handling of state secrets, trade secrets, personal privacy and other confidential information of the parties. In particular, while evidence involving such kind of sensitive information is admissible, the court may take, or the parties may apply for, protective measures such as a private trial, restriction or prohibition of copying, counsel-only disclosure or the signing by the parties of a confidentiality agreement. ⁴⁵

Finally, China does not recognize attorney-client privilege. Lawyers must keep confidential all information that the client does not wish the lawyer to divulge. ⁴⁶ However, this obligation is excused when a lawyer obtains information concerning criminal acts jeopardizing state security, public safety or the personal safety of other persons. ⁴⁷ Further, the duty of confidentiality does not create a legal privilege between client and attorney. On the contrary, the relevant laws impose a duty on all individuals and entities with knowledge relevant to the case to testify in court, a duty which extends to lawyers and other professionals. ⁴⁸ The lack of legal privilege protection in the PRC raises significant issues in a litigation context.

Pre-action disclosure

PRC law does not require any mandatory pre-action disclosure specific to competition litigation. For civil litigation in general, however, parties must engage in a pre-trial exchange of evidence at a time that the parties agree upon or, if the parties fail to reach an agreement, at a time determined by the court. ⁵⁰ The court presides over the exchange of evidence and keeps a record of objections to any exchanged evidence in anticipation of trial. ⁵¹

Average length of time from issue of claim to judgment in China

The length of time from the issue of a claim to judgment varies greatly depending on the factual circumstances and complexities of a specific case. In civil litigation, the court of first instance will generally render a decision within six months from the time that the court accepts the case. On appeal, higher level People’s Courts usually enter a final judgment within three months of the date of appeal. Courts may extend the time for rendering a verdict upon approval from the chief of the court. Special proceedings may further extend the time required for parties to receive a final judgment.

While the time varies greatly depending on the case, recent statistics suggest that courts tend to take a longer time to render judgments in competition litigation than in other types of case. However, straightforward competition cases might take less than the average time. The below table illustrates the length of time the courts of first instance and the appellant courts took to render judgments in various recent and significant competition cases:

Case Name	Length of time from filing of claim to judgment at the Court of First Instance	Length of time from filing of appeal to judgment at the Appellant Court
Rainbow v Johnson & Johnson (2013)	18 months	14 months
Qihoo 360 v Tencent (2014)	16 months	16 months
Huawei v InterDigital (2013)	14 months	5 months
Beijing Emiage Tech. Co. v Qihoo 360 (2015)	6 months	4 months

Average cost from issue of claim to judgment in China

Costs also vary greatly depending on the nature of the claim and the complexities of a particular case. Beyond fees for legal representation, parties must pay court costs, including case acceptance fees, application fees for specific court orders or actions, and expenses incurred by witnesses, authenticators, translators and adjusters (such as travel, accommodation, living allowances and compensation for missed work). ⁵² Case acceptance fees are calculated as a percentage of the amount of the claim. ⁵³ Additionally, note that parties applying for interim measures, such as the preservation of property, must typically provide security in exchange for approval of their application. ⁵⁴ That said, it can be anticipated that the cost of anti-monopoly proceedings in the PRC will be less than would be the cost of similar proceedings if run in more mature competition law jurisdictions.

Third-party/alternative funding

PRC laws contain no specific prohibitions on third party funding. Should the third party funding take the form of law firm contingency fees, however, the fee may not exceed 30% of the award. ⁵⁵

Alternative methods of dispute resolution

Chinese law provides several methods of alternative dispute resolution, including mediation and arbitration. Private anti-monopoly litigation does not fall on the list of non-arbitrable disputes, so parties have the option of arbitration provided they have entered into a valid arbitration agreement. ⁵⁶

Relief

Availability of damages and quantification

Business Operators, who as a result of infringing Monopolistic Acts have caused losses to third parties, must bear civil liability “according to the law.” The SPC Provisions specifically allow that claimants may receive compensation for losses from the infringer. ⁵⁷ Relevant law does not, however, provide guidance on the calculation of those losses. Judgments may include the reasonable expenses of a claimant in investigating and asserting its claim ⁵⁸ and also require that the losing party bear the winner’s litigation costs. ⁵⁹ Litigation costs include case acceptance fees, application fees and expenses incurred by witnesses, authenticators, interpreters and other individuals appearing in court, but do not include the losing party’s legal fees. ⁶⁰

Note that the SPC Provisions state that if an alleged monopolistic behavior has continued for more than two years, then damages will be calculated for only the two years prior to the date that the claimant commenced litigation. ⁶¹

Punitive and exemplary damages

Chinese law does not provide for punitive or exemplary damages in competition litigation.

Availability of interim or final injunctions in respect of an alleged competition law infringement

As part of its judgment, a court may order parties engaging in monopolistic behavior to “cease infringement.” ⁶²

Currently, however, no basis for obtaining interim injunctions exists in competition litigation or in general civil procedure law. Indeed, the concept of preliminary execution (or advance enforcement) under the PRC laws is different from that of interim injunction. This concept means that the court can require the defendant to discharge certain obligations (usually make payments) even before the court issues the final judgment confirming such obligations. It usually applies in cases of indemnifications for personal injury, claims for alimony or claims for due salaries.

There is no mechanism in competition litigation that would be similar to “advance enforcement.” Since the advance enforcement applies in civil actions, theoretically it also applies to competition civil actions. However, in practice, it would be extremely challenging to obtain in a competition case as the central requirement for granting such a relief is that the facts of the case are very clear and that the rights and obligation of both parties are almost undisputed. In other words, the court has no doubt that such advance enforcement will be confirmed in the final judgment.

Other types of relief

The language of the SPC Provisions suggests the possibility of other relief beyond compensation and orders to cease infringement, allowing the court to prescribe other civil remedies in accordance with the law. ⁶³ The Civil Code lists other possible methods of bearing civil liability which could apply to anti-monopoly cases. ⁶⁴ These other methods of bearing civil liability include cessation of injury, removal of hindrance, elimination of danger, restoration to the original state, elimination of effects and restitution of reputation and offer of apology. ⁶⁵

Emerging Trends

In recent years, there has been a significant increase in the number of private competition actions. In the majority of cases, claimants have accused companies of abuse of dominant position, though there have also been a number of claims alleging vertical and horizontal anti-competitive agreements. Private actions have involved those between large companies, as well as actions initiated by individuals and small and medium-sized companies. There have been private actions in sectors ranging from seafood wholesaling to electricity supply.

Follow-on private actions

Tian Junwei (a consumer) v Abbott and Carrefour:

Tian Junwei, a consumer in Beijing, brought a private antitrust action in December 2014 against Abbott China and Carrefour in the Beijing Intellectual Property Court, where the court accepted the case. Mr. Tian claimed that he suffered damage as a result of unlawful resale price maintenance in respect of an Abbott infant formula product he purchased in Carrefour. Resale prices were cut following the RPM investigation conducted by the competition authority (NDRC). ⁶⁶  The plaintiff only claimed token damages of around RMB10 (approximately USD1.60). Mr. Tian alleges that Abbott and Carrefour agreed to maintain a higher retail price for the products to the detriment of consumers.

The two defendants both filed jurisdictional challenges to the Beijing Higher People’s Court. On June 18, 2015, the Beijing Higher People’s Court, in its final ruling, affirmed that the Beijing Intellectual Property Court has jurisdiction over this case. ⁶⁷ The case is currently pending before the Beijing Intellectual Property Court.

This lawsuit is the first follow-on action (i.e., a private action for damages filed after the conclusion of an investigation by one of the Anti-monopoly Enforcement Agencies) in the PRC. It is generally understood that it would be difficult for consumers to file and win private antitrust cases due to the heavy evidentiary burden and the complexity of the economic analysis that might be applied. Whether and how the NDRC’s penalty decision would reduce such burden of plaintiff remains to be tested in this case. If the consumer wins this lawsuit (on the back of the NDRC’s earlier findings), it may encourage more follow-on actions in China.

Private actions in the technology sector:

In particular, private actions have been prominent in the technology sector. These private actions come at a time when Chinese competition authorities have strengthened antitrust enforcement in respect of intellectual property rights.

Qihoo 360 v Tencent:

In a case involving Qihoo 360 Technology Co. Ltd. (“Qihoo 360”), a leading Chinese antivirus software company, and Tencent Holdings Limited (“Tencent”), a major Chinese Internet and social media company, Qihoo 360 alleged that Tencent had abused its dominant market position in the instant-messaging and service market by bundling its antivirus software with its instant-messaging software QQ Messenger. On October 16, 2014, the Supreme People’s Court upheld the Guangdong High People’s Court decision in 2013 by rejecting Qihoo 360’s allegations.

This was the first judgment of the Supreme People’s Court under the AML since it took effect in 2008 and is a landmark case in establishing the approach to market definition and assessment of what constitutes abuse of dominance under the AML. Market share was considered by the court to be only a rough and potentially misleading indicator when assessing the existence of a dominant market position. High market share does not, the court said, directly translate into the existence of a dominant market position. The court found that Tencent had limited power to control prices, quality, quantity or restrictions on trading terms. Although the restrictions it imposed might have inconvenienced consumers, this was a dynamic and highly competitive market and the court held that there was insufficient evidence to prove that Tencent held a dominant market position or that it had abused its position in the instant-messaging and service market.

Huawei v InterDigital:

In another case, Huawei Technologies Co. Ltd. (“Huawei”), a leading Chinese telecommunications equipment manufacturer and service provider, alleged that InterDigital, Inc. (“InterDigital”), a leading US developer of fundamental mobile phone technology, had abused its dominant market position in China and the US in the market for the licensing of essential patents through: (i) differentiated pricing, tying and a refusal to deal; and (ii) its refusal to license patents to Huawei on fair, reasonable and non-discriminatory (“FRAND”) terms. On October 28, 2013, the Guangdong Higher People’s Court upheld the Shenzhen Intermediate People’s Court’s decision by ruling that InterDigital had violated the AML by licensing standard essential patents to Huawei on unfairly high royalty rates. InterDigital was ordered to cease the alleged excessive pricing and improper bundling of patents, and pay Huawei approximately RMB20 million in damages.

This was the first competition case involving patent transfer and the first time a court has determined a FRAND royalty rate in China. This case sets a potentially important precedent for other complaints relating to standard essential patents.

After this case, ZTE (a leading Chinese telecommunication equipment manufacture and service provider) and Arima (a Taiwanese mobile phone manufacture) filed lawsuits against InterDigital, both accusing InterDigital of abuse of dominance and failure to comply with FRAND licensing obligations.

i) Arima v InterDigital Arima filed a lawsuit against InterDigital to the Jiangsu Higher People’s Court on September 22, 2014. The plaintiff alleged that InterDigital abused its dominance by licensing its patents at excessively high prices, engaging in discriminatory treatment and imposing unreasonable trading conditions, and sought damages of RMB120 million. The antitrust dispute was ultimately settled by the two parties in June 2015. According to the settlement agreement:

a) The parties agreed to maintain their existing patent license agreement.

b) InterDigital agreed to abandon all litigation and arbitration challenging Arima’s use of its patents worldwide.

c) Meanwhile, Arima agreed to withdraw its complaint filed with the Taiwan Fair Trade Commission.

d) InterDigital agreed to pay compensation to Arima of an undisclosed amount.

ii) ZTE v InterDigital: On the other hand, the ZTE v InterDigital case is still ongoing. ZTE filed this lawsuit against InterDigital with two complaints at Shenzhen Intermediate People’s Court. The first complaint alleges that InterDigital has failed to comply with FRAND licensing commitments for the licensing of its Chinese SEPs. The second complaint alleges that InterDigital has abused its dominant market position by charging excessive royalties, exercising discriminatory treatment and imposing unreasonable trading conditions. For the first complaint, ZTE is asking the court to determine the FRAND rate and award litigation costs. As to the second complaint, ZTE is seeking damages in the amount of RMB20 million.

Private actions against state-owned enterprises and governmental agencies

There has been a gradual increase of private competition enforcement actions against SOEs and governmental agencies in recent years. For example, in January 2014, the Shanghai First Intermediate Court accepted a complaint filed by a consumer against the stated-owned China Telecom alleging abuse of a dominant market position in the prices it charged for broadband internet and fixed-line telephone services. This case is currently ongoing.

In May 2014, the Guangzhou Intermediate People’s Court accepted a complaint filed by a Chinese software company alleging the Guangdong Provincial Education Department was abusing its administrative power to restrict competition by handpicking another company as the exclusive software provider for a government-organized event. In February 2015, the Guangzhou Intermediate People’s Court upheld the complaint, finding that the education department had abused its administrative power by handpicking the exclusive software for the government organized event. The case took 11 months.

The defendant has appealed to the Guangdong Higher Peoples’ Court; this appeal is ongoing.

The lower court’s judgment is noteworthy as it is one of the very few cases where the court has engaged in a meaningful analysis on whether a government authority has abused its administrative power or not. The Supreme People’s Court organized an internal seminar to discuss the case, inviting antitrust practitioners and academics. It remains to be seen, however, whether this decision is upheld on appeal. These recent cases show that the Chinese courts are not unwilling to accept cases against SOEs and governmental agencies. However, to date there has been limited success on the part of the complainants.

Summary

A large number of the early private enforcement cases under the AML were unsuccessful. However, this is probably due in part to failures to identify a credible competition law theory of harm and lack of credible evidence to properly define the relevant market and demonstrate the defendant’s anti-competitive behavior or abuse of dominance. There continue to be some uncertainties and hurdles for claimants in bringing private competition enforcement cases in China. However, recent court decisions, in particular the decision of the Supreme People’s Court, have provided useful illustration on the courts’ approach to private enforcement. It is expected that the number of private enforcement actions will continue to increase in the future and to become an increasingly important avenue for parties seeking redress for competition complaints.

 

¹ Anti-Monopoly Law Arts. 13–14.

² Anti-Monopoly Law Art. 17.

³ Anti-Monopoly Law Art. 20. Concentrations include various forms of acquisitions and other methods of obtaining control over another business operator.

⁴ SPC Provisions Art. 2, which requires the courts to accept stand-alone claims, including claims where the alleged Monopolistic Act is subject to investigation but the investigating authority is yet to confirm whether an infringement has occurred.

⁵ Anti-Monopoly Law Art. 2.

⁶ Art. 53, which imposes sanctions and liability for damages for bid-rigging.

⁷ Art. 41, which provides for civil liability for pricing violations.

⁸  Art. 20, which authorises private enforcement against anti-competitive violations of the Anti-Unfair Competition Law.

⁹ General Provisions of the Civil Code of the PRC (“Civil Code”) Art. 135; SPC Provisions Art. 16.

¹⁰ SPC Provisions Art. 16.

¹¹ Provisions of the Supreme People’s Court on Certain Issues Concerning the Application of the Statute of Limitations to Civil Case Trials Art. 10.

¹² Civil Code Art. 140.

¹³ Civil Code Art. 137.

¹⁴ SPC Provisions Art. 3.

¹⁵ Circular of the Supreme People’s Court on Studying and Implementing Anti-Monopoly Law

¹⁶ SPC Provisions Art. 3.

¹⁷ Civil Procedure Law Art. 19.

¹⁸ Civil Procedure Law Art. 20.

¹⁹ Civil Procedure Law Art. 164.

²⁰ Civil Procedure Law Art. 175.

²¹ Civil Procedure Law Art. 198.

²² Civil Procedure Law Arts. 198–199.

²³ Supreme People’s Court’s Several Opinions on Accepting and Examining the Petitions for Retrial of Civil Cases Arts. 27–28.

²⁴ Civil Procedure Law Arts. 52, 54.

²⁵ Civil Procedure Law Arts. 53–54.

²⁶ Civil Procedure Law Art. 54.

²⁷ Guiding Opinions 1.1.

²⁸ Guiding Opinions 3.1.

²⁹ Guiding Opinions 4.2.

³⁰ Guiding Opinions 4.3, 4.7.

³¹ Provisions of the Supreme People’s Court on Evidence in Civil Procedures (“Evidence Provisions”) Arts. 4–7.

³² SPC Provisions Art. 7.

³³ SPC Provisions Art. 8.

³⁴ SPC Provisions Art. 9.

³⁵ SPC Provisions Art. 10.

³⁶ SPC Provisions Art. 8.

³⁷ Civil Code Arts. 35, 52, 65, 87.

³⁸ Tort Law Arts. 8-9.

³⁹ Civil Procedure Law Art. 63.

⁴⁰ Civil Procedure Law Art. 64.

⁴¹ Civil Procedure Law Art. 67.

⁴² Evidence Provisions Art. 18.

⁴³ Disclosure Regulations Art. 33.

⁴⁴ Disclosure Regulations Art. 14.

⁴⁵ SPC Provisions Art. 11.

⁴⁶ PRC Lawyers Law Art. 38.

⁴⁷ PRC Lawyers Law Art. 38.

⁴⁸ Civil Procedure Law Art. 72.

⁴⁹  Evidence Provisions Art. 38.

⁵⁰ Evidence Provisions Art. 38.

⁵¹ Measures on the Payment of Litigation Costs (“Payment Measures”) Art. 6.

⁵² Payment Measures Art. 13.

⁵³ Civil Procedure Law Art. 100.

⁵⁴ Measures for the Administration of Lawyers’ Fees Art. 13.

⁵⁵ PRC Arbitration Law Art. 3.

⁵⁶ Anti-Monopoly Law Art. 50.

⁵⁷ SPC Provisions Art. 14.

⁵⁸ SPC Provisions Art. 14.

⁵⁹ Civil Procedure Law Art. 152.

⁶⁰ Payment Measures Arts. 6 and 29.

⁶¹ SPC Provisions Art. 16.

⁶² SPC Provisions Art. 14.

⁶³ SPC Provisions Art. 14.

⁶⁴ Civil Code Art. 134.

⁶⁵ Civil Code Art. 134.

⁶⁶ In August 2013, the NDRC fined six domestic and international baby formula companies a total of RMB668 million for unlawful RPM. The companies sanctioned include Abbott, Biostime, Dumex, FrieslandCampina, Fonterra and Mead Johnson. All the companies took corrective measures during and after the investigation including price cuts.

⁶⁷ The ruling was made based primarily on Article 23 of the Civil Procedure Law and Article 3 of the Circular of the Supreme People’s Court on Jurisdiction of the Intellectual Property Court. The Circular clearly indicates that the Intellectual Property Court has the jurisdiction over the first instance antitrust cases in the city where it is located.