China's Anti-monopoly Law was promulgated in 2008, making 2019 the 11th year of its implementation.
Article 50 of the Anti-monopoly Law establishes a dual-track law enforcement system: administrative law enforcement and civil litigation. The two approaches have their own characteristics and complement each other. For acts that have not been investigated or dealt with by anti-monopoly law enforcement agencies, the plaintiff may bring a civil action directly to the people's court without preconditions of administrative law enforcement procedures; meanwhile, if the suspected monopoly acts have been investigated and dealt with by the anti-monopoly law enforcement agencies and have been determined to constitute monopoly acts, the plaintiff may take legal effect in the agencies' decision to deal with them. Doing so post-prosecution is more conducive to protecting the plaintiff's legitimate rights and interests, and ultimately obtaining compensation relief.
Overall, the implementation of China's Anti-monopoly Law is still dominated by the public execution mode of "administrative law enforcement", supplemented by the private execution mode of anti-monopoly civil litigation. After the tenth anniversary of the implementation of the Anti-monopoly Law, anti-monopoly civil litigation cases are developing rapidly, with the trend of wider coverage, more diverse issues and more specialised trials.
The number of anti-monopoly civil litigation cases has been increasing over recent years, with a particular focus on the telecommunication and internet industry. These two areas are new parts of China’s economy, but larger enterprises have more dominant strength, so China’s anti-monopoly litigation shows a number of new features and developments in them. Other related industries are information networks, transportation, insurance, medicine, food, household appliances, power supply and others. Such cases are centred on disputes over abuse of market dominance and disputes over monopoly agreements, with the former being in the majority.
At present, China's anti-monopoly civil lawsuits frequently overlap with intellectual property cases, especially concerning disputes over licensing fees for standard essential patents (SEPs) and disputes over the infringement of standard essential patents. That is to say, in the standard essential patents licensing area, particularly the telecommunication industry, when an implementer of SEP (manufacturers) fails to reach an agreement with the standard essential patent holder and so fails to pay royalties, the holder would sometimes have to seek remedies by filing a standard essential patent infringement lawsuit and a licence fee lawsuit against the implementer who refuses to pay the licence fee, demanding the cessation of the infringement and payment of the licence fee; the implementer then often brings a lawsuit regarding abuse of dominant market position, accusing the SEP holder of abusing the market dominant commitments made by the obligee to the standard patent organisations for licensing in accordance with the FRAND Principles (fair, reasonable and non-discriminatory).
In China, the parties involved in these lawsuits are often engaged in standard patent infringement lawsuits and anti-monopoly lawsuits in other jurisdictions around the world, especially in the relevant product markets of the United States and Europe (the UK, Germany, etc). This latest development deserves attention, as it puts forward higher requirements and challenges for judges in Chinese courts, Chinese anti-monopoly litigation lawyers and patent litigation lawyers.
2019 is the 11th year after the first promulgation of China’s Anti-monopoly Law, and also the second year of the power integration among different anti-monopoly law enforcement agencies, finally bringing a new law revision milestone. The antitrust authorities used to belong to three different state government agencies (State Development and Reformation Commission, State General Bureau of Industry and Commerce, and Ministry of Commerce), but are now all integrated into a single state agency: the newly formed State Administration of Market Supervision. As a consequence, on 1 September 2019, the three supporting regulations of the Anti-monopoly Law promulgated by the State Administration of Market Supervision became officially effective, namely:
The significance of this is that it unifies the different enforcement standards of the previous law enforcement departments and central and local governments in these three important anti-monopoly areas. It will also affect the future of anti-monopoly civil litigation and administrative litigation-related legal issues.
Another recent change for the antitrust civil lawsuit procedure is that, from 1 January 2019, all appellate antitrust litigation will be handled directly by the Intellectual Property Tribunal set up internally in the Supreme Court of China.
China's Anti-monopoly Law has relatively general provisions on the right to claim damages for violations of it, with Article 50 stipulating that if a business operator carries out monopoly actions and causes losses to others, the operator shall bear civil liability according to law. However, Article 50 itself provides only general rules, and does not detail the kind of damages and their calculation methods or formula.
This article does not limit the application of civil liability to monopoly actors for compensation for damages, but uses a higher concept of "civil liability". Therefore, the Anti-monopoly Law leaves a great choice for the civil liability of monopoly (see Understanding and Application of the Supreme Court’s Judicial Interpretation over Anti-monopoly Civil Litigation).
In essence, the civil liability of monopoly is a kind of tort liability; therefore, the way to bear monopoly liability should be applied to the relevant provisions of the Tort Liability Law.
Article 50 of the Anti-monopoly Law does not stipulate fault as being an important element of civil liability for tort when stipulating the civil liability of operators who carry out monopolistic acts. This means that the monopolist should bear tort civil liability regardless of whether he is at fault or not – as long as his monopoly has caused losses to the legitimate rights and interests of others, it is sufficient to be sued; this means that, in China, monopoly liability is actually a liability without fault.
According to this liability imputation principle, a victim of monopoly can obtain compensation relief only by proving the following:
Article 14, paragraph 1, of the Judicial Interpretation of Monopoly Disputes clarifies the above three elements. According to the nature and characteristics of monopoly, it stipulates the two most common methods of civil liability – namely, stopping infringement and compensating for losses.
These two modes of civil liability are also included in the 11 main ways to bear civil liability stipulated in Article 179 of the General Principles of Civil Law: (1) stop infringement and (8) compensate for losses.
In terms of of case filing, there are two ways of demanding compensation for damages in violation of the Anti-monopoly Law: successive/subsequent lawsuit and separate lawsuit. Anti-monopoly separate litigation refers to civil litigation that does not take the enforcement of administrative organs as a prerequisite or condition; subsequent litigation refers to the civil litigation brought by the victim of monopoly to the object of punishment after the administrative penalty is imposed by the anti-monopoly law enforcement organs.
In China, these two litigation modes coexist because the Anti-monopoly Law establishes a dual-track parallel law enforcement system of administrative law enforcement and civil litigation – ie, anti-monopoly civil litigation does not need to take the administrative identification of the anti-monopoly law enforcement agencies as a prerequisite.
Article 2 of the Judicial Interpretation of the Supreme Court of Justice of the Anti-monopoly Law clearly states that if the plaintiff directly brings a civil action to the court, or if the decision of the Anti-monopoly Law enforcement agency recognising the monopolistic act has become legally effective, then the court shall accept the action if it meets the other admissibility conditions prescribed by law.
There are no special antitrust tribunals or judges in China. However, due to the strong professional nature of such disputes, the Supreme Court implemented the Provisions on the Causes of Civil Cases, on 1 April 2008, which centralised the provisions on monopoly disputes and various unfair competition disputes, and unified them into the scope of intellectual property disputes. This not only clarifies that the Intellectual Property Court of the Court (as well as the specially established Intellectual Property Courts of Beijing, Shanghai and Guangzhou) shall be responsible for hearing all kinds of monopoly civil disputes, but also determines that monopoly civil disputes shall be subject to centralised jurisdiction, just like intellectual property cases.
According to the Supreme Court’s judicial interpretation about civil antitrust litigation in 2012, and the latest Supreme Court ruling about the jurisdiction of its own internal IP tribunal, the trial case of antitrust litigation will be centralised under the jurisdiction of certain specified intermediate courts (or intellectual property courts), as well as provincial level high courts; regardless of which level is the trial court, all appellate litigation will be appealed directly to the Intellectual Property Tribunal of the Supreme Court.
Anti-monopoly disputes may indeed be transferred between courts in China, as follows:
After the enactment of the Anti-monopoly Law in 2008 and before the institutional reform of the State Council in March 2018, for ten years the anti-monopoly law enforcement departments in China were scattered among the Ministry of Commerce, the State Development and Reform Commission and the former State Administration for Industry and Commerce, and three higher departments of these organs were set up in the State Council.
The State Administration for Industry and Commerce is responsible for the enforcement of non-price monopoly agreements, non-price abuse of market dominance, and abuse of administrative power to exclude restrictions on competition; the State Development and Reform Commission is responsible for the enforcement of price-related monopoly actions; and the Ministry of Commerce is responsible for the anti-monopoly review of concentrations of operators.
In March 2019, the State Council's institutional reform, in accordance with the "Plan for the Reform of the State Council's Institutions", retained the Anti-monopoly Committee of the State Council, and set up the State Administration of Market Supervision and Administration to integrate the responsibilities of the three anti-monopoly law enforcement agencies to form a unified law enforcement model. The Anti-monopoly Bureau of the General Administration of Market Supervision is responsible for the anti-monopoly law enforcement of abuse of market dominance, monopoly agreements, abuse of administrative power to exclude/restrict competition, and the anti-monopoly review of concentration of operators.
At the same time, the General Administration of Market Supervision has authorised provincial market supervision departments to take charge of anti-monopoly law enforcement in their respective administrative regions by issuing the Notice on Authorisation of Anti-monopoly Law Enforcement.
The Anti-monopoly Law and the Supreme Court's Judicial Interpretation of Anti-monopoly do not specify whether the administrative decision of the anti-monopoly organ of the state has any binding force or effect on the court. However, we believe it is not binding for the following reasons:
In China's successive/subsequent anti-monopoly civil litigation, the anti-monopoly administrative organs cannot directly intervene in civil litigation as a plaintiff or defendant, nor may it be added by the court as a third party. There is also no amicable curiae system in China. However, because, as mentioned above, their decision is very persuasive for the court, the court may usually ask those administrative organs for their administrative decision, or the party to civil antitrust litigation may request the court to do so.
There are also some controversies in academic circles: on the one hand, if the court is not allowed to obtain such evidence, the plaintiff's difficulty in providing evidence will be aggravated; on the other hand, because China has not exempted or mitigated the civil liability of the applicant for forgiveness, the applicant for forgiveness can become the defendant in anti-monopoly civil litigation and the anti-monopoly administrative investigation stage. The establishment of the system of forgiveness and the system of application for suspension itself is to encourage the offenders to stop the illegal acts as early as possible and actively reduce the adverse effects, and, at the same time, improve the efficiency of law enforcement and save administrative resources. If the court can "easily" obtain the "evidence" of the parties' violation of the law obtained by the anti-monopoly law enforcement agencies in the procedure of suspension or forgiveness, it may affect the enthusiasm of the parties to apply the system of forgiveness in the anti-monopoly investigation in practice, thus affecting the anti-monopoly administrative law enforcement to a certain extent.
China is a continental law country, and there are generally four constitutional elements to constitute monopoly liability under the antitrust law system of China:
According to the general rules regarding the distribution of the burden of proof, the claimant shall bear the burden of proof to prove all the above elements. Detailed rules are below.
The burden of proof in disputes over monopoly agreements
For five horizontal agreements with very obvious negative effects provided by Paragraph 1 of Article 13 of the Anti-monopoly Law of China, the law directly assume their effect of excluding or restricting competition, therefore lowering the plaintiff's burden of proof. These five statutorily categorised horizontal agreements are those that:
As a consequence, the plaintiff only needs to prove that the defendant has implemented a specific horizontal agreement.
However, the second paragraph of Article 13 of China's Anti-monopoly Law stipulates the conditions of "exclusion and restriction of competition" for monopoly agreements other than the above five horizontal agreements, and for all vertical agreements. That is to say, the plaintiff must prove such an effect, with no assumption this time, and court will decide based on the principle of reasonable analysis.
The proof of "the effect of exclusion and restriction of competition" is a complex and comprehensive evaluation process, which generally follows the following steps:
The burden of proof in disputes over abuse of market dominance
The plaintiff should have market dominance over the relevant market, the defendant has market dominance and the defendant has abused market dominance. If the plaintiff has proved that the defendant has conducted the above-mentioned behaviour, then the burden of proof will be transferred to the defendant if the defendant's action to defend himself is justified, and the defendant shall bear the burden of providing evidence for the defence. The Supreme Court has long recognised this principle in judicial practice.
However, the abuse of a market dominant position by public enterprises or other operators with an exclusive position according to law has certain particularities, because their market is often a natural monopoly or there is inadequate market competition, and their market dominant position is often inherent. Therefore, the plaintiff's burden of proof in proving the dominant position of such market players can be moderately reduced. Article 8 of the Supreme Court's Judicial Interpretation of Anti-monopoly Law clearly stipulates that if a defendant's behaviour that is claimed to be monopoly was conducted by public enterprises or other operators with monopoly status by operation of laws, then the court may directly recognise that such a defendant does have a dominant position in the relevant market by considering the specific circumstances of the market structure and the competition situation, and the exception is if there is sufficient evidence to overturn such a recognition.
As for the burden of proof of "transferring defence", it is understood that "transferring defence" means that when the defendant's direct purchaser (such as a wholesaler or retailer) brings an anti-monopoly civil damage compensation lawsuit against the defendant's monopoly practitioner (such as a producer), the defendant will argue that the plaintiff has already transferred all or part of its monopoly price difference loss to the indirect purchasers, who are typically represented by the vast number of consumers.
Article 10 of the draft "Anti-monopoly Judicial Interpretation" of the Supreme Court in 2011 clearly stipulated that if the defendant claims that the victim has transferred all or part of his losses to others, he shall bear the burden of proof. However, this stipulation was removed from the officially implemented version. In judicial practice, the idea of transferring defence has not yet been seen, so the allocation rules of the burden of proof of this defence need to be clarified by Chinese legislature and Chinese courts.
The standard of proof
The standard of proof of probability (75%) is adopted in general civil litigation. According to the above judicial practice of lowering the burden of proof for five statutorily provided horizontal agreements, the presumption rule is also adopted by China for such antitrust litigation. The defendant’s burden to deny the evidence would be satisfied so long as it can make the issue become “unclear for truth” (ie, lower the probability from 75% to below 50%).
Claims can be brought by direct and indirect purchasers. The Anti-monopoly Law and its judicial interpretation are consistent with this understanding, and judicial practice has also confirmed it.
Typical Duration of First Instance Proceedings
The law stipulates that the trial period of civil litigation in a first instance hearing by ordinary procedure is six months. If there are special circumstances, the period may be extended for another six months with the approval of the Chief Judge of the Court. If there is any further specific extension, it shall be submitted to the higher court for further approval, and there are no stipulations for how long the specific extension can be. Anti-monopoly litigation is no exception – it follows the above statutory trial period system and rules.
In practice, a number of anti-monopoly litigation cases are highly controversial and usually involve complex professional issues. Therefore, they often exceed the trial period and need to be extended for more time. Two to three years is common for a trial.
Suspending Proceedings During Parallel Investigations by Antitrust Law Enforcement Agencies
As introduced above, the Anti-monopoly Law of China implements the dual-track law enforcement system of administrative law enforcement and anti-monopoly civil lawsuit, and does not regard the administrative law enforcement procedure as a precondition of a civil lawsuit. Therefore, the civil court will not suspend the proceeding to wait for the outcome of a parallel administrative antitrust investigation. The revision history of Supreme Court judicial interpretation of the Anti-monopoly Law also reflects such an understanding.
Applying for Suspension of the Proceedings
According to the provisions of Article 150 of the Civil Procedure Law, a party to a civil litigation does have the right to apply for suspension but limited to the following reasons:
Such rules also apply to anti-monopoly civil litigation.
Under China's litigation system, there is no class action/collective action that directly corresponds to the American litigation system, but there is a common litigation system (including joint trial system and representative litigation system) and a public interest litigation system under the civil litigation system.
Consolidated Trial Under Joint Action
If one party or both parties are made up of more than two persons, the object of the action is the same, or the object of the action is the same kind, and the people's court considers that it is possible to hear the case jointly, with the consent of the parties, it is a joint action.
After the promulgation of the judicial interpretation of anti-monopoly, the Supreme Court of China pointed out that there may be a large number of victims of monopoly, who can choose to sue individually or jointly, on behalf of others and in other ways prescribed by law. Therefore, there may be cases in which multiple plaintiffs sue the same court for the same monopoly act.
In the case of multiple defendants jointly carrying out monopolistic acts, it is also possible for multiple plaintiffs to sue different courts for the same monopolistic acts.
In order to realise the merger hearing more effectively, the court of appeal needs to obtain the litigation information of related cases in time. For this reason, Article 6 also stipulates the information disclosure obligation of the defendant, so that the court of appeal can understand the relevant information in a timley manner, and do a good job in the transfer of cases.
A joint action involving a large number of parties may be initiated by the parties selecting their representatives. In representative litigation, the court will generally issue a public announcement explaining the case and the litigation request, notifying the obligee to register with the people's court within a certain period of time, and the registered obligee will elect the representative, or the people's court will agree with the registered obligee that the representative will participate in the litigation procedure. The litigation action of the representative has effect on the party he represents (therefore, from this point of view, it belongs to selective participation). The judgments and rulings rendered by the people's court shall be effective for all the obligees participating in the registration. However, if a right holder who has not participated in the registration brings a lawsuit during the limitation period, the judgment or ruling shall also apply.
At the same time, there increasing opinion in academic and practical circles that the public interest litigation system should be applied to the field of anti-monopoly. For example, when the new Civil Procedure Law and the Anti-monopoly Law were revised, some NPC representatives proposed to apply public interest litigation to the field of anti-monopoly law.
Public Interest Litigation
Public interest litigation refers to a procedure in which a public interest social organisation or procuratorial organ initiates a lawsuit as a plaintiff, requiring the defendant to assume the responsibilities of stopping infringement, removing obstruction, eliminating danger and apologising for compensation. If the facts and illegal acts have been confirmed by the effective judgment of public interest litigation, and the victim who has suffered damage from the same tort initiates a civil action as the plaintiff separately, they may claim that the facts and illegal acts determined by the public interest litigation should be directly applied.
The qualified subjects of public interest litigation are relevant social organisations, such as provincial consumer associations; procuratorial organs can also initiate public interest litigation.
However, judicatory practice shows that there are no antitrust disputes brought by the qualified subjects of statutory public interest litigation. One antitrust lawsuit of the nature of public interest litigation was brought, but was rejected by the courts.
Direct and Indirect Buyers
Neither the Anti-monopoly Law nor the Judicial Interpretation of the Supreme Court's Anti-monopoly Litigation have any restrictions on the types of victims of monopoly. As long as it can be proved that they have suffered actual losses due to monopoly, both direct and indirect victims can initiate litigation. Therefore, representative cases and public interest litigation cases should be able to represent direct and indirect purchasers.
However, if the plaintiff is a direct purchaser, whether the plaintiff can bring a representative action to represent the indirect purchaser depends on at least two aspects: first, China’s law requires the object of action and the claims filed to court by the parties to be completely identical, but we do not think those for the direct purchaser and the indirect purchaser could overlap that accurately; second, even if they are identical, whether the obligee of the indirect purchaser will represent them wholeheartedly is another practical question. Therefore, it is necessary for the legislature to promulgate specific provisions, or for the courts to make judicial interpretations or interpret them through judicial practice.
Because so far public interest litigation for anti-monopoly does not exist in China, only the procedure for representative actions needs to be introduced: if the court believes that a representative action could be organised, the court will issue a public announcement explaining the case and the request for action, informing the obligee to register with the people's court within a certain period of time; after that, the registered obligee shall elect a representative to carry out the action, and if no representative can be selected, the people's court may negotiate with the obligee who participates in the registration to represent him.
There are two types of settlements: an in-litigation mediation process held by court judges, and an out-of-court settlement privately between the anti-monopoly litigation parties. Both are allowed. For the first choice, if the parties reach a settlement, the court will officially issue a “Statement of Settlement”, which has the same legal effect as a judicial judgment that can be forced for execution. For the latter choice, once the parties privately reach a settlement agreement, the plaintiff will report to the court to apply to withdraw the litigation. Both practices have existed in previous anti-monopoly litigation.
There is no system of dismissal/summary judgment in China's civil procedure system. An analogous system is the simplified procedure. The law divides the procedure of first instance into ordinary procedure and simplified procedure. In the cases accepted by grass-roots courts, the simplified procedure can be used to hear civil cases with clear facts, clear relationships between rights and obligations and little controversy, including anti-monopoly litigation cases. Compared with the ordinary procedure, the simplified procedure is relatively simple and flexible, involving oral prosecution, a hearing by a judge alone, a hearing within three months of the date of filing a case, etc (the hearing period of the ordinary procedure is six months). The period of reply, the period of proof and the trial procedure can also be simplified. There is no evidence exchange before the court. In the course of the trial, if the court finds that the simplified procedure is inappropriate for a case, it may decide to convert it to the ordinary procedure.
Because anti-monopoly disputes are generally complex and controversial, the ordinary procedure is generally applied, and, in principle, monopoly cases of first instance are tried by intermediate courts (including local intellectual property courts established in recent years); only by grass-roots courts specially designated by the Supreme Court can hear antitrust disputes.
In practice, some grass-roots courts did adopt the practice of the simplified procedure hearing. However, since 1 January 2019, only intermediate courts and high courts have jurisdiction over trial anti-monopoly litigation, and only grass-roots courts can use the simplified procedure, so we estimate the possibility to apply the simplified procedure will become zero.
The jurisdiction of anti-monopoly civil litigation in China includes the following aspects.
Regional Jurisdiction of Monopoly Disputes
The jurisdiction of monopoly civil disputes shall be determined in accordance with the provisions of the Civil Procedure Law and relevant judicial interpretations concerning tort disputes (for example, plaintiff for litigation of abuse of dominance), contract disputes (for example, a case filed by one signing party to a monopoly agreement), because monopoly civil disputes include not only infringement disputes, but also contract disputes and other disputes.
Tort disputes fall under the jurisdiction of the people's court of the place of tort and the place of the defendant's domicile; contract disputes fall under the jurisdiction of the people's court of the place of performance of the contract and the place of the defendant's domicile.
However, it is not just the courts that satisfy the above conditions that have jurisdiction: because of the particularity of China's monopoly civil disputes, which often involve a high degree of professionalism, complexity and great influence, the Supreme Court centralised monopoly disputes and various unfair competition disputes into the scope of intellectual property disputes as early as 2008, thus implementing centralised jurisdiction. Following this spirit, the judicial interpretation of anti-monopoly clearly stipulates that cases of monopoly civil disputes in the first instance shall be under the jurisdiction of the intermediate people's courts of cities where the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are located or cities with separate plans, and intermediate people's courts designated by the Supreme People's Court.
If the case is not filed as a monopoly dispute, the parties will lodge a defence or counterclaim in accordance with the Anti-monopoly Law in the course of the trial. For example, in contract disputes, the defendant raises a defence or counterclaim on the ground that the plaintiff has carried out monopolistic acts. At this time, this kind of defence and counterclaim directly affects the effectiveness of the contract. If the court of acceptance refuses to hear the case because it does not have jurisdiction over monopoly disputes, or if it requests the parties to sue separately, it may cause conflicts in the judgment of the same contract by different trial courts, and affect the authority and credibility of the judiciary. This means that the case belongs to monopoly civil disputes, and the jurisdiction system of monopoly civil disputes needs to be applied. If the court itself does not have jurisdiction over monopoly civil disputes, the transfer of jurisdiction may occur. The people's court of the accused will first examine the monopoly defence or counterclaim put forward by the parties to see if they have evidence to support it. If there is supporting evidence, the case will be transferred to the people's court with jurisdiction; if there is a clear lack of evidentiary support, the case will not be transferred to another jurisdiction.
According to Article 3 of the Supreme Court's Anti-monopoly Judicial Interpretation (Provisions of the Supreme People's Court on the Application of Law in the Trial of Civil Disputes Caused by Monopoly Acts (2012)), monopoly disputes in the first instance shall be separately listed by the municipalities and plans where the provincial and municipal governments are located. The municipal intermediate people's courts and the intermediate people's courts designated by the Supreme People's Court have jurisdiction (for example, although Suzhou is not the city where the Jiangsu Provincial Government is located, the Suzhou intermediate courts have jurisdiction in the first instance monopoly disputes in the jurisdiction areas of Suzhou, Wuxi, Changzhou and Nantong). However, the intellectual property courts specially established in Beijing and Shanghai have jurisdiction over cases of first instance monopoly civil disputes within their municipal jurisdictions. Guangzhou Intellectual Property Court, established in Guangdong Province, exercises cross-regional jurisdiction over civil disputes of first instance monopoly in Guangdong Province.
In terms of the amount, in litigation whose subject matter falls under the jurisdiction of the intermediate people's court in civil cases of first instance implemented on 1 May 2019, the jurisdiction of the above-mentioned intermediate courts applies to cases involving amounts between CNY5 million and CNY5 billion. If more than CNY5 billion is involved, the provincial high court shall have jurisdiction over monopoly cases in the first instance. All appellate cases will be appealed directly to the IP Tribunal set up internally in the Supreme Court of China.
Application of Law for Anti-Monopoly Disputes
Firstly, the supreme law applicable to monopoly disputes is the Anti-monopoly Law of the People's Republic of China, which applies to monopoly acts in domestic economic activities and monopoly acts that, although occurring abroad, have exclusive and restrictive effects on domestic market competition. Specific monopoly behaviour includes three types:
At the same time, China's anti-monopoly law enforcement agencies have the power to investigate and punish suspected monopoly acts in accordance with the Anti-monopoly Law, so a series of administrative regulations have been issued, mainly including the following.
Major substantive law provisions
Major procedural provisions
Procedures for investigation and punishment shall be governed by the Provisions on Procedures for the Investigation and Disposal of Monopoly Agreements and Cases of Abuse of Market Dominance by Administrative Organs for Industry and Commerce, implemented by the former State Administration for Industry and Commerce on 1 July 2009, and the Provisions on Procedures for Suppressing Abuse of Administrative Power, Eliminating and Restricting Competitions issued by Industry and Commerce regulatory organs.
The plaintiff in an anti-monopoly civil action cannot only bring a civil action directly to the court, but can also bring a civil action to the court after the decision of the anti-monopoly law enforcement agency that constitutes a monopoly action has legal effect. Therefore, the above-mentioned regulations are mainly used in a large number of anti-monopoly law enforcement cases, but the courts will also be used as the basis for judgment in anti-monopoly civil lawsuits.
In monopoly civil litigation, the litigants often make claims for damages and stop infringement. The object of limitation of action is the claim for creditors' rights, so only the claim for damages can be applied to the limitation of action, and the rule of the limitation of action cannot be applied to stop infringing upon the claim. With regard to the commencement of limitation of action, Article 16, paragraph 1, of the Judicial Interpretation of Monopoly Disputes stipulates that the limitation period of the claim for damages shall be calculated from the date when the original notification or the infringement of rights and interests should be known. In the case of sustained tort causing loss to others, the limitation of action should be calculated separately for each individual damage. Therefore, Article 16, paragraph 3, of the Judicial Interpretation of Monopoly Disputes stipulates that if the monopoly action prosecuted by the plaintiff has lasted for more than two years, then when the defendant protests against the claim for statute of limitation, the amount of damages shall only be calculated for two years backward from the date the plaintiff files a lawsuit to the court.
After the implementation of the General Provisions of the Civil Law on 1 October 2017, however, the civil litigation statute of limitation has been generally changed to three years. Certain local high courts believe that means the specified law rules should also be changed to three years. The Supreme Court itself has not yet provided a settled opinion.
The Civil Procedure Law of China does not stipulate a system of document discovery or evidence discovery that corresponds to that of the British and American jurisdictions. The same is true of anti-monopoly litigation. The law stipulates that the parties have the burden of proof for their claims, and if the burden of proof is not completed, they will bear the legal consequences. However, the law does not stipulate an obligation to co-operate with each other in providing evidence. Therefore, in practice, it is very difficult for the plaintiff to collect evidence, especially in anti-monopoly cases.
However, there is a pre-trial evidence exchange system in civil litigation in China. The parties may apply for the exchange of evidence before the court, and the courts of complex cases should also organise the exchange of evidence before the court. In the practice of an anti-monopoly lawsuit, a large number of pre-trial evidence exchange procedures are adopted.
Evidence exchange usually takes place under the supervision of judges. In the process of evidence exchange, the parties' facts and evidence to which the judges have no objection will be recorded in the file; the evidence that does raise an objection will be recorded in the file according to the facts that need to be proved, and the reasons for the objection will be recorded. Evidence exchange does not usually occur more than twice. Through the exchange of evidence, the main issues of disputes between the parties in anti-monopoly civil litigation are determined.
The procedure of evidence exchange has no effect on the other party's compulsory disclosure, so it cannot realise the same function as that under the evidence discovery system in Anglo-American jurisdictions.
However, the law stipulates that when a party carries on its burden of proof, if there is evidence to prove that the other party holds the evidence it needs and refuses to provide it without justified reasons, the court may presume that the facts against the holder are established. In practice, judges are very cautious when they use this rule to make factual presumptions.
According to the Civil Procedure Law of China, the parties have the responsibility to provide evidence for their own claims. In China's civil procedure laws and regulations, the parties and their procedural agents are not granted the right to exempt certain evidence from being submitted to the court for certain reasons.
In China, there is no system directly corresponding to the "lawyer client privilege" system in Anglo-American law.
Lawyers are obliged to keep the following information confidential: business secrets, the privacy of the parties, the situation and information that clients are unwilling to disclose. However, this does not constitute a reason for refusing to provide evidence to the court.
As mentioned earlier, China actually has the opposite system of obstruction of proof. The parties shall still provide evidence involving state secrets, business secrets and personal privacy, or other evidence that should be kept confidential as stipulated by law, to the court, but they may apply for special treatment in the cross-examination procedure (such as not exchanging it with the other party, only allowing it to be examined in court, etc).
In China, the administrative reconciliation mechanism to achieve lenient treatment from anti-monopoly law enforcement agencies refers specifically to the "operator’s commitment" system.
According to Article 45 of the Anti-monopoly Law of China, if the operator under investigation undertakes to take specific measures to eliminate the consequences of the suspected monopoly behaviour investigated by the anti-monopoly law enforcement agencies within the period approved by the anti-monopoly law enforcement agencies, the anti-monopoly law enforcement agencies may decide to suspend the investigation. The decision to suspend the investigation shall state the specific content of the undertaking of the operator under investigation. After the operator has fulfilled his promise, the anti-monopoly law enforcement agency may decide to terminate the investigation.
At present, China's laws and regulations do not clearly stipulate whether the agreement reached between the operator and the supervisory authority, or the commitment made by the operator, can be exempted from public disclosure or from submission to the courts in civil proceedings under the operator commitment system. However, according to the Guidelines on Operators' Commitments in Anti-monopoly Cases promulgated by the National Development and Reform Commission in 2016 (Draft for Opinions, not in force yet), law enforcement agencies believe that the suspected monopoly behaviour of operators has affected the legitimate rights and interests of other operators and consumers or the public interests of society, on the premise of safeguarding operators' business secrets. Under the precondition of safeguarding operators' business secrets, law enforcement agencies shall suspend the investigation decision and terminate the investigation according to law, within 20 working days of making the decision to do so. The decision is made public to the public.
Fact witnesses are often used in anti-monopoly cases, and their testimony is one of the eight types of legal evidence in China's procedural law. They often testify for business mode, business operation conducts, and content of the agreement. After verifying the facts, the testimony can be used to prove the facts of cases related to antitrust litigation disputes.
In principle, witnesses should testify in court – ie, provide oral statements. However, with the permission of the court, those who cannot appear in court for legitimate reasons, such as health reasons, long distances and inconvenient traffic, can testify by means of written testimony, audio-visual transmission technology or audio-visual materials.
All legal evidence, including witness testimony, shall be presented in court and cross-examined by the parties concerned. Evidence without cross-examination by the parties shall not be used as the basis for ascertaining the facts of the case.
However, cross-examination here does not necessarily require witnesses to appear in court. The law does not stipulate that the court can force witnesses to testify in court, nor does it have adverse consequences for refusing to testify in court. In practice, some witnesses do not testify in court, but only issue written testimony; the court still adopts such testimony when it can verify it with other evidence.
In China, similar to Western litigation procedures, expert witnesses are usually expert assistants with expertise and professionals with specialised opinions.
First of all, the identification of monopoly often requires the use of more complex economic analysis, and judges are usually not economic experts, so expert assistants with economic expertise play a very important role in anti-monopoly civil litigation. In this regard, the Supreme Court's Anti-monopoly Judicial Interpretation clearly stipulates that the parties can apply to the court for one or two persons with expertise in economics to appear in court to explain the specialty of the case. The purpose is to guide the litigants to actively apply for expert assistants with economic expertise to appear in court, so as to provide help for the court to more clearly ascertain the facts of the case and more accurately identify monopolistic acts.
In the practice of hearing monopoly disputes, courts attach more importance to the role of expert assistants. During the trial, the adjudicators will inquire about the expert assistants appearing in court, allow the expert assistants to ask questions of the other party, allow the expert assistants of both parties to confront each other, and also allow the expert assistants to ask questions of the professionals who make market investigation or economic analysis reports, so as to facilitate understanding and investigation.
In addition to expert assistants, expert opinions are often involved in anti-monopoly civil litigation, and also play an important role in solving key economic issues in cases. Article 13, paragraph 1, of the Supreme Court's Anti-monopoly Judicial Interpretation clearly stipulates that: "The parties may apply to the court for entrusting professional institutions or professionals to make market investigations or economic analysis reports on the specificity of the case. With the consent of the court, the two parties may negotiate to determine professional institutions or professionals; if the consultation fails, the court shall appoint them."
Considering the similar nature of expert opinions in anti-monopoly civil litigation, especially market investigations or economic analysis reports, Article 13, paragraph 2, of the Judicial Interpretation of Monopoly Disputes stipulates that, for such market investigation or economic analysis reports, reference can be made to the Civil Procedure Law and relevant judicial interpretations. The provisions of the concluding opinions shall be examined and judged. Therefore, if the expert reports of the parties have objections or if the court considers it necessary for the expert to appear in court, the expert shall testify in court. If an expert refuses to testify in court after being notified by the court, his opinions shall not be taken as the basis for ascertaining the facts; the party who pays the expenses for the expert's report may request the return of the expenses.
In addition to referring to the general practice of examining and judging expert opinions, the court will pay attention to the following questions when examining and judging:
The civil procedure of the Chinese courts allows the courts to organise evidence exchange and pre-trial meetings after the expiration of the defence period, in order to prepare for the trial. The evidence exchanged will include expert opinions or reports issued by experts from both sides, and the focus of disputes will be summarised in the pre-trial meeting. The court will inform the parties of whether to apply for witnesses, experts and expert assistants to appear in court; however, it will not require experts from both sides to appear in court directly to point out the similarities and differences between the two sides' opinions, which is usually done by both parties and their lawyers.
Compensation for monopoly damages adopts the principle of compensating and filling the loss only, not punitive damages.
For determination of the loss, two methods are adopted: to be determined by economic quantitative analysis, or to be determined by court discretion. The first method means the difference between the economic situation of the victim during the period of being infringed by the monopolistic act and the economic situation assumed not to be infringed by monopoly during the period of infringement. In judicial practice, the commonly used methods of calculation are the front-and-back method, the benchmark method, the market share method, the regression analysis method, etc.
However, since it is usually very difficult to accomplish, the court may have to use its own discretion. The court can decide on a reasonable amount of compensation according to the facts that have been identified, considering the nature, degree and duration of the illegal acts and other factors.
Regarding proof, expert assistants, judicial appraisal, and market surveys are usually taken. Again, even with this evidence, the court may eventually still have to decide by its own discretion.
The scope of compensation for loss also includes reasonable expenses paid for investigating and stopping monopolistic acts.
The transfer defence (passing-on defence) refers to the defendant who is prosecuted by the direct purchaser for engaging in monopolistic acts. If it can be proved that the direct purchaser has transferred the loss caused by the monopoly actor's excessive high price to the follow-up consumer through onward sales, then the defendant does not need to transfer the loss part that has been transferred.
At the law level, the current anti-monopoly law does not specify the "transfer defence" system, but it has been mentioned in the discussion of the initial stage of the anti-monopoly civil litigation system in China. The Supreme Court's Provisions on Several Questions Concerning the Application of Law in the Trial of Monopoly Civil Disputes once referred to the allocation of burden of proof of "Transferred Defence", but it was deleted from the official draft. In view of the fact that the Supreme Court has clearly defined the original litigation qualification of direct buyers and other indirect buyers, including consumers, and that the scope of compensation for civil tort damage in China's anti-monopoly law is the actual loss caused by the illegality of monopolistic acts, there is room for the system of "transfer plea".
In judicial practice, there are no cases in which the defendant's monopoly behaviour advocates transferring the defence, but we believe it should be allowed becauseb as we introduced before, no punitive or additional damage awards exist in China – a claimant can only recover for actual loss. Now, if the direct purchaser plaintiff has already transferred its loss to an indirect purchaser, it will be unfair for such plaintiff to continue to sue the defendant for any compensation.
The anti-monopoly laws and regulations do not specify that the compensation for damages includes interest, but because the compensation for damages is based on the principle of compensating and filling the loss only, as a consequence, all actual losses caused by the monopoly actions are compensated.
In judicial practice, there are no cases in which the plaintiff claims damages and pays interest. However, in general tort cases, the Supreme Court has supported the position that the infringer should be liable for the interest generated during the period from the occurrence of damage to compensation. The interest rate is calculated at the annual interest rate of the People's Bank of China for the same period.
In addition, if the obligation to pay money is not fulfilled within the specified period, the interest on the debt of the delayed period of performance shall be doubled.
Joint and several liability is understood to refer to a system in which the defendant in any monopoly lawsuit assumes full liability for tort when there are multiple tortfeasors of a monopoly act. Article 50 of the Anti-monopoly Law stipulates that "if the operator carries out the monopoly act and causes losses to others, he shall bear civil liability according to law", but the judicial interpretation has not yet refined the liability system of the joint infringers of multiple monopoly acts. In practice, there are no relevant cases.
However, as a continental law country, it is very typical for there to be a joint tort action when the tortfeasors subjectively conspired with each other, by reaching a horizontal monopoly agreement or a vertical monopoly agreement, for exmaple. Therefore, we believe they are surely able to be imposed joint liability by the court.
The forgiveness system is an anti-monopoly law enforcement system. It means that, before the illegal monopoly behaviour is discovered by the authority, or before the law enforcement authority initiates any investigation or finds sufficient evidence, if a perpetrator of monopoly behaviour can proactively report to the authority, and actively co-operate with them by providing sufficient evidence, the authority may mitigate or exempt that member from being punished.
The law does not say whether their duty should be lowered in civil litigation, as mentioned above; in principle, they should be imposed joint liability. How to inspire their willingness to confess for forgiveness, however, is a question that the legislation is yet to answer.
This procedure exists in tort litigation, in which joint and several liability is generally applied in China. That is to say, the subject of the joint tort, after assuming the liability for tort compensation to the victim, initiates a recourse lawsuit inward to other subjects of the joint tort. However, because the Anti-monopoly Law itself and the judicial interpretation of anti-monopoly litigation do not stipulate the specifics, and because there are no relevant cases in judicial practice, the procedure needs further clarification in laws and regulations.
The "injunction" in question is an expression in American law, which generally corresponds to the Behaviour Preservation in China’s legal system, including the behaviour preservation before litigation and the behaviour preservation in litigation. Such injunction in China does not include the American “permanent injunction” in the final judgment of the court – in China, a permanent injunction is generally an order to stop the tort act in the final judgment.
Articles 100 and 101 of the Civil Procedure Law respectively stipulate the preservation of acts in litigation and the preservation of acts before litigation, which is the substantive law basis for the preservation (prohibition) of acts in China. In addition, the Supreme Court's Provisions on the Application of Law in Examining Cases of Intellectual Property Disputes promulgated in 2018 (hereinafter referred to as "Provisions") are specific provisions on the application of law in cases of intellectual property disputes, since anti-monopoly disputes belong to these Provisions. Under the banner of intellectual property rights and competition disputes, the present Provisions can also be applied to the preservation of acts in anti-monopoly cases.
The Test for Granting Injunctive Relief
If a relevant party does not immediately apply for pre-litigation behaviour preservation because of the urgent situation, which will cause irreparable damage to their legitimate rights and interests, then such a party may apply to the court where the property is preserved, or the court where the defendant resides, or another court that has jurisdiction over the case for the preservation measures before filing a lawsuit or applying for arbitration (Article 100 of the Civil Procedure Law).
For behaviour preservation during litigation, the court may, on the basis of the application of the other party, decide to preserve the targeted party’s property, order the targeted party to perform certain acts or prohibit it from doing certain acts in cases where the judgment may be difficult to execute due to the acts of that targeted party or other reasons, or because the targeted party may cause other damages to the party concerned. If the parties have not applied, the court may also decide to adopt preservation measures when necessary.
The Process for Obtaining an Injunction
For pre-litigation behaviour preservation, the interested party may apply to the people's court where the property is preserved, the people's court where the defendant resides or the people's court that has jurisdiction over the case for the adoption of preservation measures before filing a lawsuit or applying for arbitration.
For behaviour preservation during litigation, the parties directly apply to the court for action preservation.
In judicial practice, if the situation is not urgent or if the inquiry may affect the implementation of the measures of preservation, the court usually organises the hearings of both parties and makes a ruling after hearing the opinions of the applicant and the respondent.
Notice to the Other Parties
In principle, the court should ask both the petitioner and the respondent. If such a step would cause a leak of confidential information that would fail the preservation action or enlarge the loss to petition, the court would not ask the respondent.
For urgent situations, the court must review the application within 48 hours of receiving it; once it grants the application, the court shall execute the order immediately. In practice, the court would normally take several days or even longer to review and approve.
Consequences for Applicants if they Succeed in Obtaining an Injunction but Fail at the Trial of the Substantive Case
If the application is incorrect, the applicant shall compensate the defendant for the losses suffered due to the preservation action. Therefore, when applying for pre-litigation behaviour preservation, the applicant should provide a guarantee, or else the application will be rejected. When applying for preservation during litigation, the court may order the applicant to provide a guarantee according to the circumstances of the case; if the applicant does not provide such guarantee, the application will be rejected.
The amount of the guarantee provided by the applicant shall be equivalent to the loss that the respondent may suffer as a result of the enforcement of the preservation measures, including reasonable losses such as sales proceeds and storage expenses of the products involved in ordering the cessation of the infringement.
In China, alternative dispute resolution methods include arbitration and mediation by court, and out-of-court private reconciliation between the parties.
Both the Supreme Court and the local high court have provided judicial opinion that an anti-monopoly litigation should not be arbitrated in China. The reason is that any arbitration agreement between the parties is only binding on themselves; however, anti-monopoly action is not only related to them but is usually related to public interests or the interests of other third parties. Therefore, it has to be subject to litigation and the jurisdiction of the judicial court.
Court mediation is also a major alternative dispute resolution method. It refers to the litigation activities in which the parties voluntarily and equally negotiate on the disputes of civil rights and interests under the chairmanship of the judges of the people's court in order to reach agreement and resolve disputes. Court mediation has a wide range of applicability and runs through the civil trial procedure, including the first instance procedure, the second instance procedure and the retrial procedure. Court mediation should always be based on the voluntary basis of the parties. In practice, anti-monopoly cases such as abuse of market dominance also exist.
The conciliation of the parties means that, after entering the litigation procedure, the parties reach an agreement to settle the dispute through independent consultation. The parties' reconciliation is the embodiment of the parties' exercise of the right of disposition, without the participation of the court. After reaching a settlement agreement, the lawsuit is usually terminated by the withdrawal of the plaintiff.
Laws and regulations do not provide for a litigation fund system. Such system does exist in practice, but is mainly limited to environmental public interest litigation and enterprise creditors' rights cases. In the past two years, with the gradual expansion of the market demand for intellectual property rights protection in China, some litigation funds have included trade mark, patent and unfair competition infringement and other intellectual property cases in the scope of funding.
Because there are no special provisions, the funding of litigation funds is not publicly known. Due to the lack of disclosure of funding, there are no published cases of anti-monopoly litigation funding in practice.
Access to funding depends on a two-way agreement. After the plaintiff submits a case application to the fund, the litigation foundation usually evaluates the case, including the probability of winning the lawsuit and the benefit of the lawsuit. In China, the success rate of plaintiffs in anti-monopoly litigation is very low, which may reduce the investment willingness of ordinary litigation funds. However, it is worth noting that the number of monopoly civil cases shows an overall trend of growth, and the amount of litigation cases also shows an obvious trend of growth, which may help to attract litigation funds to invest in anti-monopoly litigation.
The expenditure of litigation mainly includes the litigation fee, the lawyer fee, the appraisal fee, and so on. Litigation fees are paid to the court, and are charged according to the amount of the subject matter; they are first paid by the plaintiff, and finally shared in principle according to the proportion of the winning amount supported by the court. The lawyer fees of the winning party are usually not supported in the litigation, but the Supreme Court does have different rules through its judicial interpretation of anti-monopoly litigation – namely, in anti-monopoly cases, the winning party can ask the other party to pay its expenses for investigating the monopoly behaviours and stopping the monopoly behaviours, as well as other reasonable legal expenses. For other litigation costs such as the judicial appraisal fee, the court will determine the proportion and amount of those costs to be borne by the parties, but it generally follows the principle that the losing party should bear the costs.
The litigation fee guarantee system under the common law refers to the system in which one party (usually the plaintiff) deposits cash or other means to guarantee the litigation fee of the other party, so that the litigation fee of the other party can be compensated if it wins the lawsuit. Under this system, the defendant may apply to the court for an order for security for costs on the basis of statutory circumstances; unless the plaintiff guarantees in accordance with the order, the relevant legal proceedings will be suspended or revoked. However, there is no such system under Chinese law.
In practice, the only case in which the guarantee of litigation costs is applied in Chinese litigation is when a party from a foreign country carries out litigation in a Chinese court, where the Chinese court will treat the issue of whether the party should provide the guarantee of litigation costs differently between his own country and foreigners in the foreign law. If dealt with according to the principle of reciprocity, the foreign party may be required to provide guarantees for litigation costs.
There are no restrictions on appeals under China’s legal system. The parties can appeal if they believe there are errors in the facts of the first instance review, in the trial procedure or in the application of the law. The same is true in anti-monopoly litigation. According to the latest arrangement of the Supreme Court starting in 2019, the intellectual property court established within the Supreme Court will be unified to hear anti-monopoly appeals from the whole country, regardless of whether the first instance court is a high court, an intellectual property court or an intermediate court.
As mentioned earlier, China implements the system of two-instance final judgment, and the second-instance judgment made by the court of second instance after appeal is the final judgment. There is still a "retrial" system in China's legal system, but the retrial system belongs to the trial supervision procedure of the effective judgment (whether it is first or second instance), and it is not the third trial procedure set up in the conventional way.
In 2018 and the first half of 2019 several cases, as well as new legislation, have brought about important developments in both substantive and procedural aspects of antitrust litigation in China. These developments, combined with the celebration of the tenth anniversary of the coming into effect of China’s Anti-Monopoly Law (AML) and the consolidation of China’s three antitrust authorities into the State Administration for Market Regulation (SAMR) in 2018, have pushed antitrust litigation in China into a new era and some fresh trends have emerged.
Antitrust litigation in China can be split into two main categories: civil and administrative. Antitrust civil litigation covers disputes arising from monopoly agreements and abuses of dominant market position conducted by business operators (including private individuals, legal persons and other organisations). Antitrust administrative litigation covers disputes arising from administrative monopolies exploited by public authorities or competent organisations, as well as decisions or penalties made by antitrust authorities. Additionally, when antitrust authorities fail to carry out investigations as requested by complainants, they can be sued for failure to perform their duties in ordinary, but antitrust-related, administrative litigation. Administrative Litigation is a specialised category of lawsuit against government authorities under Chinese law. Indeed, antitrust administrative litigation is a significant and unique feature of Chinese competition law. Below we will explore how these various types of litigation developed in the past one-and-a-half years.
The Amount of Antitrust Litigation Seems to be in Decline
In 2018, there were 66 examples of newly filed first-instance antitrust civil litigation in China, which was the lowest level in six years (72 cases in 2013, 86 in 2014, 156 in 2015, 156 in 2016 and 114 in 2017). It seems antitrust civil litigation is declining after the peak years of 2015 and 2016.
However, these figures may not entirely accurately represent the state of antitrust litigation in China. First, it is understood that these figures may only include those cases based on the AML, not civil cases where antitrust defence or counterclaim is brought into the case. It is increasingly common to find suits for damages deriving from breach of contract in which defendants claim that the contract is void due to breach of the AML. Second, these figures cannot reflect the development of specific types of antitrust civil litigation such as follow-on actions and cases related to resale price maintenance (RPM). Third, these figures do not, of course, cover antitrust administrative litigation, which is increasingly widespread and an important way for businesses to protect their interests.
If first-instance antitrust civil litigation (including suits involving antitrust defence and counterclaim) is indeed declining, it may be attributed to the extremely low win rate for plaintiffs. There is no discovery mechanism in China and plaintiffs losses are mainly due to failure to meet the burden of proof. China’s Supreme People’s Court (SPC) has recognised this issue and is seeking for a solution. At present, public enforcement of the AML still has a dominant position in comparison to private enforcement.
Institutionalisation of Different Approaches toward RPM by Courts and Antitrust Authorities
The most important substantive development in antitrust litigation in China is the Yutai case decision in which the SPC showed respect to the antitrust authorities’ treatment of RPM as illegal, per se, although the court system adopts a 'rule of reason' approach.
To celebrate the tenth anniversary of the enforcement of China’s AML, the SPC selected and issued the ten most representative antitrust civil litigation cases of the past ten years in November 2018. Within the SPC’s list, two cases are RPM-related. One is Rainbow v Johnson & Johnson, which is the first high profile (but not the first ever) RPM case where the court adopted the 'rule of reason' approach and required the plaintiff to prove the anti-competitive effect of the defendant’s RPM practice. The other one is Guochang v Gree. The main difference between the two is that in the first case the plaintiff ultimately won the appeal by proving the anti-competitive effect of the RPM in the relevant medical device market, while in the latter the court failed to find any anti-competitive effect in the relevant air-conditioner market.
By contrast, Chinese antitrust authorities have adopted the per se rule (or rule of “prohibition and exemption” in their vocabulary) in over 20 RPM cases, and imposed fines totalling over USD1.5 billion. This divergence ultimately led to the first RPM judicial review case: the Yutai case. After being fined for RPM by a local antitrust authority, Yutai brought antitrust administrative litigation against the authority and won the first-instance trial where the court ruled that the authority failed to prove anti-competitive effect. However, in the second-instance trial, and more importantly in the SPC’s retrial in December 2018, the authority won and the SPC recognised that the antitrust authorities do not need to prove anti-competitive effect in their public enforcement in the current political and economic context of China.
After Yutai, the courts and antitrust authorities may continue to adopt different approaches toward RPM unless the AML is amended. In the meantime, more potential conflicts are expected. It is reported that China’s Anti-Monopoly Committee under the State Council will soon release the long-awaited antitrust guidelines, including one for the automobile industry. According to its draft version, certain types of territory and customer restriction in the industry (such as restrictions on distributors’ passive sales and restrictions on distributors’ sales of auto parts to consumers) will be treated as vertical monopoly agreements and illegal, per se, by the antitrust authorities. However, the courts may continue to use the 'rule of reason' when handling these non-RPM vertical monopoly agreements. Interestingly, in the SPC’s ten-case list, a consumer lost his suit against an auto maker and its authorised dealer for, among other things, not providing auto parts for sale outside the dealerships.
Judicial Review Contributes to Rule-Making and May Become Normal Practice
In addition to Yutai, two other instances of antitrust administrative litigation were brought in 2018 to challenge the penalties imposed by the antitrust authorities. In particular, the Haijiye case confirmed the court’s recognition of two important substantive rules in public enforcement. First, concerted practices, even in the absence of a written agreement between competitors, are unlawful. Second, administrative monopoly which causes the competitors’ concerted practices cannot exempt the competitors from antitrust penalties.
In the SAMR’s new regulations on monopoly agreements and abuse of dominance, which were enacted in July 2019, the two substantive rules recognised in Haijiye are preserved, and the SAMR added a new provision on the reduction of penalties in cases where monopolistic conduct is caused by administrative monopoly. This new provision may be more acceptable to business operators in similar cases in the future.
To date, the plaintiffs have lost in all antitrust judicial review cases (although Yutai scored a temporary win in the first instance). This is partly due to the relatively straightforward nature of these cases and the superior position of the antitrust authorities in exercising discretion when enforcing the AML. Some business operators, probably wisely, have not even tried to bring a judicial review case. The increasing number of cases, however, indicates that the trend may be for judicial review to become normal practice.
Among the reasons to believe this are that:
On the other hand, the newly integrated SAMR may become more aggressive and take a firmer stance when it is in conflict with the judiciary, and its influence might ripple into the antitrust litigation field.
Interaction between the courts and the antitrust authorities is also increasingly prominent in two other areas. One is follow-on actions. Although a growing number of plaintiffs choose to claim damages after the defendants have been penalised by the antitrust authorities, it remains highly difficult to win. This is because the findings and decisions of the antitrust authorities are only prima facie evidence which needs to go through a second test in the courts. The other is administrative litigation against the antitrust authorities for failure to perform their duty to initiate investigations as requested. There were several such cases in recent years brought by consumers or companies, but none were successful on the plaintiffs’ side. The courts reasoned that the duties of the antitrust authorities are to protect market competition, the collective interests of consumers and society as a whole rather than individual interests.
Administrative Litigation against Administrative Monopoly Features in Chinese Courts
The fourth pillar of China’s AML is administrative monopoly. In recent years, the Chinese government has issued a number of policies to curb the widespread and deeply rooted practice of administrative monopoly in China, and public enforcement in this area is also quite active. This trend has inspired more private enforcement against administrative monopoly.
Some private enforcement has produced satisfactory results, but not all. The Shanwei Bus case is a good example of the meagreness of some private enforcement – ie, it cannot undo what has already been done in certain circumstances. Shanwei is a city in Guangdong Province, and its government chartered a new bus company to be the sole operator in the local market and rescinded the licence of the incumbent firm. That firm sued the government for designating the new operator prior to the completion of the normal bidding process, which violated the procedural rules and excluded competition. The court in the second instance recognised the procedural violation by the government and confirmed the nature of the administrative monopoly in question. It refused, however, to revoke the licence, as the new operator had been in place for three years at the time of the decision and the public interest would have been adversely impacted if its licence were revoked. Indeed, China’s Administrative Procedure Law explicitly provides for such an exemption.
Nevertheless, administrative litigation against administrative monopolies continues to grow and has received strong support from the courts. Importantly, the leadership of the Chinese government is committed to letting the market play the decisive role in resource allocation.
New Leapfrog Appeal System Leads Part of the Antitrust Litigation to the SPC
According to a decision issued by the National People’s Congress on 26 October 2018 and a follow-up regulation by the SPC, beginning in 2019, appeals arising from antitrust civil and administrative litigation that challenge administrative penalties (if tried by the intellectual property (IP) courts and intermediate people’s courts in the first instance) shall be directly submitted to the SPC, and heard by its newly established intellectual property court, skipping the provincial high people’s courts. This sets up a Chinese version of the 'leapfrog appeal' mechanism.
The purposes of this judicial reform are to promote consistency in ruling standards, strengthen protection of IP rights and optimise the business environment. Although mainly targeted at IP rights protection they are equally applicable to antitrust litigation. Inconsistent rulings (for example) where some local courts adopt the 'rule of reason' in cartel cases are a recognised problem. Other courts are accused of a bias against businesses registered in other provinces or countries. The 'leapfrog appeal' mechanism will make improvements in this respect.
It should be noted that the 'leapfrog appeal' mechanism does not apply to all antitrust lawsuits. Some antitrust civil litigation is tried by the district or basic level people’s courts approved by the SPC; these cases’ appeals would be submitted to the corresponding intellectual property courts or intermediate people’s courts. Also, it may not apply to cases merely involving antitrust defence and counterclaims. For antirust administrative litigation, the mechanism will only apply to cases challenging the SAMR’s administrative decisions or penalties, and whose first-instance trials are at Beijing’s First Intermediate People’s Court. Cases challenging the administrative decisions or penalties of the provincial administrations for market regulation, as well as cases about administrative monopoly and the failure to perform duties, are currently not within the scope of the 'leapfrog appeal' mechanism.
There have, so far, not been any publicly available SPC rulings made under the 'leapfrog appeal' mechanism. It therefore remains to be seen how it will function and what improvements there will be. Finally, retrials of the SPC’s second-instance rulings can be heard before itself, but by a different division (probably the IP Tribunal).
In addition to the trends and development explored above, some other interesting issues deserve sustained attention as they remain untested before the SPC. First, whether antitrust disputes are arbitrable. Jiangsu High People’s Court, based on the public interest nature of the antitrust issues involved, did not uphold arbitration. Second, what methods for calculating fair, reasonable and non-discriminatory (FRAND) rates for standard essential patents (SEP) are used. Huawei and IDC settled before the SPC in December 2018 and no judgment was made or released. Third, whether the SPC will apply the exemption clause for certain minor cartel activity, frequently seen in previous cases, perhaps the SPC and the SAMR will jointly establish a de minimis rule. Fourth, whether consumer associations will be allowed to bring antitrust litigation on behalf of consumers as a whole (they have successfully done so in other areas). Overall, antitrust litigation is one of the most dynamic fields under China’s AML regime.