China’s Anti-Monopoly Law (AML) provides for private right of antitrust enforcement. In 2022, antitrust litigation made further headway and continued to be active. Courts played an increasingly significant role in maintaining fair competition in the market, providing important guidance for interpretation and application of the anti-monopoly legislation.

Statistics on Antitrust Litigation in 2022

Chinese courts have published a total of 30 judgments in antitrust litigation, of which 28 were civil antitrust litigations involving monopoly agreements reached between undertakings and abuse of dominant market position by undertakings and two were administrative antitrust litigation, both of which were filed against administrative penalty decisions of local antitrust enforcement agencies. Although the total number of administrative cases concluded is relatively small and the winning rate is not high, the annual report of the Intellectual Property Division of the Supreme People’s Court (SPC) shows that there was a substantial increase in the number of newly filed antitrust administrative cases, rising from two in 2021 to 24 in 2022.

In terms of cause of action, the antitrust civil cases announced by the courts nationwide included 22 disputes over abuse of dominant market position, four disputes over horizontal monopoly agreements, and two disputes over vertical monopoly agreements, similar to the past statistics that dominant firms were major targets in antitrust litigations.

Major Developments in Judicial Practice in 2022

On 18 November 2022, the SPC issued its newest exposure draft of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Monopoly-related Civil Dispute Cases (SPC Draft Judicial Interpretation), which triggered heated discussions. It sorted out the framework of the original judicial interpretation promulgated in 2012 (amended in 2020) and enriched the old version’s content, impacting on both substantive and procedural aspects of antitrust litigation.

As to the procedural issue, jurisdictional rules for overseas and arbitration agreement cases are clarified, the burden of proof is set in a more reasonable manner, and the mechanism strengthening cooperation between judicial practices and law enforcement activities is vigorously advocated. As to the substantive issue, some hot issues often arising in recent antitrust practice have been further clarified and guided in the SPC Draft Judicial Interpretation, such as the theory of single economic entity, the definition method of relevant market, the assessment of most-favoured-nation treatment and the criteria for determining the hub-spoke protocol.

In addition, in order to better explain the judicial application of the AML, courts at all levels responded to various complex practical problems, and the SPC also made and publicised a great deal of typical cases which possess significant legal or social impact. Some of the key cases are summarised below:

Reverse Payment

In the case of the patent infringement dispute involving a reverse payment agreement for saxagliptin tablets (AstraZeneca v Aosaikang), the SPC's decision pointed out the examination idea and the basic path of reviewing cases involving reverse payment agreements for pharmaceutical patents, namely, comparing the actual situation after signing and fulfilling the agreement with the hypothetical situation of not signing and fulfilling the agreement, and then reasonably determining on the possibility of invalidating the relevant pharmaceutical patent in the event that the generic drug applicant has not withdrawn the request for declaration of invalidity.

Follow-on claims

In the case of General Motors’ vertical monopoly agreement on setting a minimum resale price (Mr Miao v Yilong Company), the SPC clarified how to effectively reduce the plaintiff’s burden of proof in the follow-on litigation relating to anti-monopoly administrative penalties, which is of practical significance for aligning judicial activities and law enforcement.

Arbitrability of monopolistic disputes

In the case of the Honeywell vertical monopoly agreement (Longsheng Company v Resideo Company, Honeywell), the SPC’s decision made it clear that the determination and handling of monopoly behaviour exceeds the rights and obligations between normal civil litigants, therefore, the arbitration clause under both parties’ consensus could not be the basis for excluding the people's courts’ jurisdiction over monopoly agreement disputes.

Rules for proving exemption of monopoly agreements

In the case of the Taizhou Jili motor vehicle driving training company, the SPC indicated that while determining whether the circumstances of monopoly agreements meet the exemption clauses stipulated by law, courts could not solely rely on general speculation or abstract presumptions. The parties concerned should provide concrete and realistic evidence to prove that the monopoly agreement has a positive competitive effect or a positive economic and social effect.

In 2023, there were also many new regulations issued by the State Administration for Market Regulation (SAMR), the national competition authority, indicating the government’s efforts to maintain the market order of fair competition. Specifically, the SAMR issued four newly revised provisions on March 24th, enhancing the regulation over monopoly agreements, abuse of dominant market position, abuse of administrative power to exclude or restrict competition and review of the concentration of undertakings.

Furthermore, the SAMR also issued a document prohibiting the abuse of intellectual property rights from casting an adverse influence on fair competition on June 25th, aiming to strengthen regulation of typical and special monopolistic behaviours pertaining to intellectual property rights. Although those regulations only have binding effect on law enforcement activities, we do expect that those refined rules are also of reference significance in terms of application of law to antitrust litigations considering the extensive influence of the SAMR in the antitrust practice in China. It is expected that more clear guidance on the application of the AML and vigorous enforcement by the SAMR will encourage businesses to wield antitrust litigations as a sword in pursuit of their commercial goals, such as declaring contractual terms void, negotiating better contractual terms in their cooperation with upstream or downstream partners or competitors.

Article 50 of China's Anti-Monopoly Law states that an undertaking that carries out monopoly acts and causes losses to others shall bear civil liability under the law. According to Article 14 of the Provisions of the Supreme Court on Several Issues concerning the Application of Law in the Trial of Monopoly-related Civil Dispute Cases (Judicial Interpretation of Monopoly-related Dispute Cases), the people's court may order the undertaking that conducts monopolistic behaviour to bear civil liabilities, such as ceasing infringement and compensating for losses based on the defendant’s claims and facts ascertained. Moreover, Article 15 of the Judicial Interpretation of Monopoly-related Dispute Cases provides that where the clauses of the contracts or the articles of association of trade associations involved in lawsuits violate the mandatory provisions of the AML or other laws and administrative regulations, the people's court shall rule such clauses as invalid.

In terms of the litigation form, both standalone and follow-on claims are available. Article 2 of the Judicial Interpretation of Monopoly-related Dispute Cases stipulates that the plaintiff may directly file an antitrust lawsuit to the people’s court or file a civil lawsuit after the decision is made by the anti-monopoly law enforcement agency that monopolistic conduct exists and takes effect, and when the lawsuit meets other requirements provided by law at the same time. In this situation, the people's court shall accept the case.

There are no specialist courts for purpose of adjudicating anti-monopoly disputes in China.

According to Article 3 of the Judicial Interpretation of Monopoly-related Dispute Cases, first-instance disputes are centrally handled by intellectual property courts and intermediate people's courts of a province; an autonomous region; a municipality directly under the central government and a city specifically designated in the state plan; or intermediate people's courts determined by the Supreme Court. In particular, first-instance civil monopoly-related dispute cases will be heard by courts in Beijing, Shanghai and Guangdong, and Hainan according to the relevant rules of territorial jurisdiction. The intellectual property courts established in Beijing, Shanghai, Guangzhou and Hainan Free Trade Port (intermediate people's court level) will exercise exclusive jurisdiction.

Monopoly-related disputes may also be transferred between courts. Relevant cases should be transferred in the situation where the dispute was not filed by the cause of a monopoly dispute, but the defendant then raises a defense or counterclaim on the grounds that the plaintiff has carried out monopolistic behaviour and there is sufficient evidence to support it, or where the case needs to be adjudicated according to the AML, but the people's court does not have monopoly jurisdiction over civil cases.

Article 114 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (Judicial Interpretation of the Civil Procedure Law) provides that matters recorded in instruments prepared by national authorities or other organisations with lawful social management functions shall be deemed true, unless there is sufficient contrary evidence to overturn them. Accordingly, an effective decision made by a national competition authority (NCA) and the facts determined therein would have probative value to serve as the basis for the plaintiff to file follow-on litigations. As for the decisions of foreign NCAs, they may only serve as reference to the court, which may only have limited influence.

Although neither the AML nor the Judicial Interpretation of Monopoly-related Dispute Cases has specified as to whether decisions of a NCA have binding effect on the courts, in a recent judicial case, Miao Chong v SAIC-GM, the SPC confirmed the probative value of NCA decisions in follow-on claims. If a NCA decision is not challenged by the defendant in the court through the administrative litigation within the statutory period or if a court upholds the penalty decision in the administrative litigation then, in a separate follow-on litigation brought by the plaintiff, there is no need for plaintiff to prove the illegality again unless there is sufficient evidence to the contrary. SPC Draft Judicial Interpretation provides the same rule as that in Miao Chong v SAIC-GM.

A NCA cannot intervene in damages actions on its own initiative but only participate in the follow-on litigations by the request of courts. As provided in SPC Draft Judicial Interpretation, the courts may request the anti-monopoly enforcement agency that has made the penalty decision to explain the relevant circumstances if necessary.

Burden of Proof

As antitrust private lawsuits fall within the scope of civil lawsuits, the general rules in the Civil Procedure Law of the People’s Republic of China (Civil Procedure Law) and the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (Civil Evidence Provisions) apply to antitrust lawsuits. Therefore, the general principle is that the plaintiff bears the burden of proof for its claims, while the defendant needs to provide the evidence for its defence and counterclaims.

When it comes to antitrust civil lawsuits, the Judicial Interpretation of Monopoly-related Dispute Cases provides more specific rules on allocation of burden of proof in several scenarios.

Horizontal monopoly agreements

For horizontal monopoly agreements, the plaintiff shall bear the burden of proving the existence of the agreement involving one of the activities listed in Article 17 of the AML while the defendant shall bear the burden of proving that the agreement does not have the effects of excluding or restricting the competition.

Vertical monopoly agreements

For vertical monopoly agreements, the AML before amendments does not presume that the vertical restraints have effects of excluding or restricting the competition and the Judicial Interpretation of Monopoly-related Dispute Cases is also silent on the allocation of burden of proof. In principle, the party alleging a vertical monopoly agreement shall be responsible for providing evidence on the existence of the agreement and that the agreement has eliminated or restricted market competition. In the previous judicial practice, the court ruled that the plaintiff shall adduce sufficient evidence to show that the resale price maintenance (RPM) clause actually had an anticompetitive effect in the market. However, the 2022 amendments to the AML made it clear that agreements involving the RPM will not be prohibited if the undertakings can prove that such agreements do not have effects of eliminating or restricting competition indicating that the RPM is presumed to be illegal. To be consistent with the new provisions of the AML, the SPC Draft Judicial Interpretation provides that the defendant shall bear the burden of proving that the agreement does not have the effects of excluding or restricting the competition. Therefore, in the future, it is highly likely that the defendant shall bear the burden of proving that the agreement does not have the effects of excluding or restricting the competition in an RPM case. As to non-price vertical monopoly agreements, the general principle shall remain applicable.

Abuse of dominance

For abuse of dominance, according to the Judicial Interpretation of Monopoly-related Dispute Cases, the plaintiff shall bear the burden of proving that the defendant possesses market dominance in the relevant market and that it has abused such dominance by violating Article 22 of the AML, while the defendant shall prove that it has justifiable reasons for conducting such behaviour. As for the anti-competitive effects of a violation of abuse of market dominance, it is commonly understood that the burden lies with the plaintiff to prove that the defendant’s behaviour has the effects of excluding or restricting market competition.

Standard of proof

The standard of proof, as in civil claims generally, is the balance of probabilities which is commonly understood as high degree of probability in China. According to Article 108 of the Judicial Interpretation of the Civil Procedure Law, with regard to the evidence provided by the party with the burden of proof, where the people's court believes that the existence of a fact to be proved is highly probable upon examination and in light of the relevant facts, it shall affirm the existence of the said fact. With regard to the evidence provided by a party to contradict the facts claimed by the other party with the burden of proof, where the people's court believes that a fact to be provided is unclear upon examination and in light of the relevant facts, it shall affirm that the said fact does not exist.

As set out in 2.1 Legal Basis for a Claim, claims for damages before the courts are based on Article 50 of  the AML and Article 2 of the  Judicial Interpretation of Monopoly-related Dispute Cases. Both direct and indirect purchasers can bring claims for damages as long as they suffer losses attributed to a monopoly conduct which can qualify them as eligible plaintiffs for having a direct stake in the case according to Article 122 of the Civil Procedure Law.

The typical timetable for an antitrust damages claim can range from a few months to several years depending on a lot of factors that may affect litigation proceedings such as whether an objection to jurisdiction is raised and whether the case involve a foreign factor. In general, the Civil Procedure Law provides that:

For a first instance case where the ordinary procedure is adopted, the court trying shall conclude the case within six months from the date when the case is officially accepted. Under special circumstances where an extension is necessary, the period can be extended by six months upon the approval of the president of the court, and upon the approval of the higher level of court, the period can be further extended if necessary. As to a case where the summary procedure is adopted, the court shall conclude within three months from the date of official acceptance.

For a case on appeal against a judgment, the court shall conclude within three months from the date of official acceptance, and under special circumstances where an extension is necessary the period can be extended upon the approval of the president of the court. For a case on appeal against a written order, the court shall conclude within 30 days from the date of official acceptance. The judgment and the written order of a court of second instance shall be final.

For now, the existence of a parallel investigation by a NCA is not a statutory circumstance that can suspend the civil proceeding. However, it may serve as the reason for a suspension in the future as the SPC Draft Judicial Interpretation provides that if the anti-monopoly law enforcement agency is investigating the accused monopoly conduct, the court may, in light of the specific circumstances of the case, rule to suspend the lawsuit.

Article 153 of the Civil Procedure Law provides general circumstances that the court shall order a stay and the circumstances that are likely applicable to an antitrust litigation include: a legal person or an organisation who is a party to the lawsuit has its operation terminated, and the bearer of its rights and obligations has not been determined; and the case is required to use the outcome of the trial of another case as the basis and the trial of the other case has yet to be concluded.

The collective redress system in China, commonly referred to as joint litigation/representative litigation and public interest litigation, is primarily established within the framework of the Civil Procedure Law. These two forms of collective redress mechanism are designed to be applicable to various civil lawsuits, including those concerning anti-monopoly claims. However, due to the lack of comprehensive regulations governing the litigation processes within the collective redress system, instances of either joint litigation/representative litigation or public interest litigation specifically tied to anti-monopoly claims have been infrequent in court proceedings thus far.

Joint Litigation/Representative Litigation

The Civil Procedure Law stipulates in principle that when multiple litigants are involved in separate lawsuits with claims that share common or analogous subject matter, these cases can be simultaneously heard as a joint litigation by the court. The joint litigation framework is indeed applicable to monopolistic disputes, as it was subsequently incorporated into the Judicial Interpretation of Monopoly-related Dispute Cases, which grants the court the authority to consolidate cases involving the same monopolistic conduct for trial if more than two plaintiffs have filed actions related to the identical monopolistic behaviour.

Representative litigation, similar to the Western-style class action, refers to joint litigation involving a large number of litigants (usually exceeding ten), where one or more parties can be selected as representatives to engage in the joint litigation on behalf of the other litigants. If the number of litigants can be determined when a representative litigation is initiated, those parties can directly coordinate among others to nominate their representatives. Nevertheless, if the number of parties is uncertain upon instituting representative litigation, litigants must register with the court following the publication of relevant notices to participate in the action. In such a scenario, representative parties can be elected through consensus among the litigants or through consultations between the court and the litigants. The court’s judgment in representative litigation is binding on all properly registered litigants, as well as other non-registered parties who have filed actions related to the identical or analogous dispute.

In the context of joint litigation/representative litigation concerning antitrust disputes, any party wishing to participate in the proceedings must comply with the opt-in requirements, either by initiating a lawsuit or registering with the court. Furthermore, joint litigation/representative litigation can be applicable to both indirect purchasers and direct purchasers under Chinese anti-monopoly regime.

Public Interest Litigation

As the other type of collective redress mechanism, public interest litigation has been newly incorporated in the amended Anti-monopoly Law in 2022, allowing the People’s Procuratorate to file a lawsuit on behalf of the public against entities suspected of engaging in monopolistic behaviours that pose potential harm to the collective interest. The authority to initiate such public interest litigation is a legally endowed power granted to the People’s Procuratorate by law, thereby no authorisation or permission from victims is needed. Consequently, any resulting compensation from such public interest litigation will only be used to enhance overall society welfare and will not be allocated to any parties who may have suffered losses due to the alleged monopolistic behaviours. As such, public interest litigation is not designed to provide the individual victim with a dispute resolution mechanism but served as a remedy for the public interest as a whole.

Under the collective redress system in China, unlike the Western-style class action system, there is no certification process available to litigants. In general, it is possible for any party who suffered from the same or analogous monopolistic behaviours to participate in a representative litigation against such illegal monopolistic behaviours.

As stated in 3.1 Availability, the procedure for engaging in representative litigation differs slightly between cases with a fixed number of parties and those with an uncertain number when the action is officially commenced. In the former scenario, initiating a representative litigation mandates that the relevant plaintiffs collaboratively identify and designate two to five representatives to present their claims before the court. In contrast, for the latter situation, the court may release a notice outlining the fundamental lawsuit particulars and urge potentially concerned parties to register within a designated timeframe. Any potential parties can, following such opt-in mechanism, register with the court by furnishing preliminary evidence showcasing the harm they’ve incurred due to the alleged monopolistic behaviours. Upon being accepted as eligible plaintiffs, the plaintiffs can appoint representatives either through joint determination or consultation with the court. In the event that such consultation is unsuccessful, the court reserve the authority to directly designate representatives on behave of the plaintiffs.

In cases of public interest litigation, when the Procuratorate intends to file a lawsuit against monopoly conduct, it shall make a public announcement in advance for the period of 30 days. This announcement shall encompass basic information of the case and inform the qualified and interested parties of their legal right to initiate action in court. Should no qualified parties take action following the announcement period’s expiration, the Procuratorate may then formally initiate civil public interest litigation.

In both representative litigation and public interest litigation, the legal option of negotiating a settlement between the litigants exists, although it does prove challenging in practice. In cases of representative litigation, the initiation of settlement negotiations by the representatives with the defendant shall be subject to the unanimous consent of all represented plaintiffs. In other words, achieving a settlement within representative litigation remains unattainable as long as any of the represented plaintiffs withhold their agreement. The exception arises when the dissenting plaintiff opts to withdraw from the representative litigation and files an independent lawsuit. Upon the request of the litigants, the court may release a conciliation statement to officially endorse the mutually agreed-upon settlement arrangement.

In the context of public interest litigation, upon the litigants entering into a settlement agreement, the court is obligated to publicise the settlement for a minimum of 30 days. Following the period of announcement, the court may proceed to issue a conciliation statement once the settlement agreement is ascertained to align with the public interest. Conversely, if the settlement agreement contradicts public interests, the court shall continue to proceed with the hearing and trial of the case.

In the context of the Chinese civil procedure system, there is no concept exactly equivalent to strike-out or summary judgment which is commonly found in common law jurisdictions. Once a lawsuit is filed by the plaintiff and subsequently accepted by the court, the pertinent dispute is typically addressed through a court trial. In this regard, the defendant is generally precluded from unilaterally wiping out the dispute or halting the legal proceeding entirely prior to the substantive trial stage.

Nevertheless, a lawsuit can be dismissed during the proceedings if the statutory conditions for filing a lawsuit have not been met. For example, on one hand, the defendant holds the right to challenge the court’s jurisdiction if a valid arbitration agreement between the parties exists, which may potentially exclude the court’s jurisdiction. On the other, if the court determines that the filing of a lawsuit fails to satisfy the stipulated statutory conditions in the Civil Procedure Law, it can either decline to accept the case or issue a civil ruling to dismiss the case after acceptance. These statutory conditions for initiating a lawsuit include:

• the plaintiff must be a citizen, legal entity or any other organisation directly connected to the case;
• there should be a clearly identifiable defendant;
• the plaintiff must present specific claims, facts, and reasons pertaining to the case;
• the case falls within the realm of civil actions and under the jurisdiction of a specific court; and
• the case is not filed repeatedly.

Furthermore, the Civil Procedure Law establishes a general framework for the summary procedure. Courts at the primary level can apply simplified procedure rules when dealing with cases involving straightforward facts, unambiguous rights and obligations, and minor disputes. However, since antitrust litigation shall be subject to the jurisdiction of the courts at intermediate level or above, simplified procedure rules cannot be applied in antitrust disputes.

Jurisdiction

The 2.2 Specialist Courts provides a comprehensive overview of the hierarchical jurisdiction regulations pertinent to antitrust lawsuits. As to territorial jurisdiction, Article 4 of the Judicial Interpretation of Monopoly-related Dispute Cases stipulates that the territorial jurisdiction of civil monopoly disputes shall be determined in accordance with the specific details of the case and pursuant to the provisions of the Civil Procedure Law and the relevant judicial interpretations on the jurisdiction for tort disputes, contractual disputes, etc.

Specifically, nuanced distinctions arise in the rules applicable to anti-monopolistic disputes categorised as either tort or contract disputes. In scenarios where an anti-monopolistic dispute can be classified as a tort dispute, the court at the place where the tort occurs or the defendant’s domicile is located shall have the jurisdiction over the case. Concurrently, an anti-monopolistic dispute categorised as a contract-based issue shall fall within the jurisdiction of the court at the place where the relevant contact is performed or the defendant’s domicile is located.

Applicable Law

The 2022 amendment to the Anti-monopoly Law stands as the primary legislative framework governing monopolistic behaviours currently, which provide the legal foundation for concerned parties to bring civil lawsuits related to monopolistic practices. As articulated in Article 2 of the Anti-monopoly Law, the legislation applies to monopolistic activities within the territory of China, as well as to monopolistic behaviours outside the territory of China that have the effect of precluding or restricting competition within the domestic market.

According to the Civil Code and the Judicial Interpretation of Monopoly-related Dispute Cases, the statute of limitations for relevant parties to file claims for damages arising from monopolistic conducts in civil litigation is three years from the date on which the plaintiff became aware or should have reasonably become aware of the harm to its rights and interests, as well as the identity of the party responsible. Lawsuits pertaining to claims where the rights and interests in question have been compromised for a period exceeding 20 years will not be afforded protection by the court, unless an extension is specifically granted by the court upon application by the relevant parties and under certain exceptional circumstances. Moreover, the limitation periods can be subject to suspension or interruption where the plaintiff reports the monopolistic conduct to the authorities.

In China, a disclosure or discovery mechanism equivalent to those found in common law jurisdictions is not available the civil lawsuit proceedings. This means that litigants are not legally obligated to proactively present evidence to the court or the opposing parties, nor do they have the right to compel the opposing parties to disclose evidence during the course of the proceeding. Instead, the Civil Procedure Law and supporting regulations have instituted a comprehensive framework of evidence rules for civil litigation, which in certain respects, can lead to effects similar to those achievable through the disclosure or discovery mechanism.

The foundational principle governing the burden of proof in Chinese civil proceedings is that litigants must provide evidence to support their claims or counter the arguments put forth by the opposing parties. Failure to provide appropriate evidence can expose a litigant to the risk of adverse consequences and even losing the case. During the pre-trial stage, the court will organise specific rounds of evidence exchange between the litigants to clarify both parties’ viewpoints and summarise the central focus of the dispute. Moreover, at the trial stage, the evidence should be presented in court and subject to cross-examination by the litigants.

Furthermore, certain evidence rules within China's civil proceedings may be perceived as a somewhat analogous yet confined disclosure or discovery mechanism to a certain extent. For instance, in cases where documentary evidence is within the control of the opposing party, the burden-bearing party may submit a formal application to the court, seeking an order to request the opposing party to disclose such documentary evidence. The applicant must provide within this written application the precise description of the documentary document intended for submission, the pertinent facts intended to be proven, the evidence substantiating the opposing party’s control over the documentary evidence, as well as the necessity of the submission of this documentary evidence. In situations where such application is accepted and approved by the court yet the opposing party refuses to provide the documentary evidence as requested without justifiable reasons, the court holds the authority to directly affirm the accuracy of the content within the documentary evidence, as contended by the applicant. Similarly, in cases where a party possesses evidence but unreasonably withholds it, and the opposing party asserts the evidence to be adverse to the possessor, the court retains the right to declare the establishment of the said assertion.

At present, China has not yet introduced the legal professional privilege system within the context of civil lawsuit proceedings. Therefore, even though lawyers are obligated to maintain the confidentiality of state secrets, trade secrets, and other information that clients prefer not to divulge, the court retains the authority to request litigants to submit such pertinent evidence if it deems it necessary. Nevertheless, as stipulated in the Judicial Interpretation of Monopolistic Disputes, when dealing with evidence involving state secrets, trade secrets or any other sensitive content, the court may employ protective measures based on its authority or upon the application of the litigants. These measures may include private hearings, limitations on replication, exclusive disclosure to attorneys, or even mandating litigants to commit the obligations in a letter of confidentiality.

Currently, there are no established laws or regulations to definitively address the question of whether leniency or settlement materials submitted to antitrust enforcement authorities can be legally shielded from disclosure during civil proceedings. Therefore, similar to other types of evidence, and in accordance with applicable civil litigation rules, the court theoretically can request litigants to provide leniency or settlement materials if such materials are necessary to ascertain the facts of the case. Nevertheless, in judicial practice, as of now, there hasn't been an instance in judicial practice where a court has requested litigants to provide leniency or settlement materials as evidence in an antitrust lawsuit.

Witness testimony constitutes one of the eight admissible forms of evidence in a civil lawsuit. Witnesses may be summoned to provide testimony during the court trial, either at the behest of the litigants’ application or at the court’s own initiative under its official authority. In this context, witnesses possessing knowledge of the case’s facts are legally bound to testify before the court.

In principle, witnesses should appear in court trial, furnish testimony, and field inquiries from both judges and litigants, unless there exist exceptional statutory circumstances. Should witnesses confront challenges that hinder their physical presence in court - such as illness, transportation issues, or other unforeseen events - they can, with the court’s consent, deliver their testimony through methods like written statements, audio-visual transmission technology, or audio-visual materials.

The involvement of expert witnesses in cases related to monopolistic disputes, particularly when these disputes involve the abuse of market dominance, is quite commonplace. Antitrust litigation is a highly specialised field that requires intricate knowledge of complex commercial, financial, and accounting matters. To establish crucial elements such as the definition of relevant market, the recognition of dominant position, the occurrence of economic damages, and the competitive impact of monopolistic behaviour, conducting economic analysis based on extensive data review, modelling, and statistical reports is often imperative. Therefore, the contribution of expert witnesses holds greater significance in antitrust litigation and can potentially impact the outcome of the case.

According to the Judicial Interpretation of Cases Related to Monopoly Disputes, damages in civil lawsuits related to monopolistic behaviours are granted solely to the plaintiff as compensation for their incurred economic losses attributed to the alleged monopolistic conduct. Consequently, punitive or exemplary damages are generally not applicable in such disputes.

The plaintiff bears the legal responsibility to furnish evidence, which might include financial records, accounting documentation, pertinent contracts, etc, in order to substantiate the precise amount of economic losses due to the alleged monopolistic behaviours. From the perspective of judicial practice, The SPC has acknowledged in a number of cases (eg, Weihai Hongfu Property Co, Ltd v Weihai Water Group) that the amount of damages in monopoly cases could be calculated by contrasting the expected transaction amount of the relevant party in a genuinely competitive market with the actual transaction amount influenced by the alleged monopolistic behaviour. Furthermore, justifiable costs incurred by the plaintiff for investigating and addressing the alleged monopolistic behaviours can also be integrated into the overall damages calculation.

Moreover, the SPC Draft Judicial Interpretation seeks to provide more clarity on the assessment of damages in cases where determining economic losses proves challenging. Under Article 45, if the plaintiff can present evidence demonstrating incurred losses but establishing the precise damages remains unfeasible, the court possesses the authority to determine the damages amount based on consideration of the nature, extent, duration of the alleged monopolistic behaviours, as well as the circumstances under which benefits were derived from the alleged monopolistic practices.

The clear provision on pass-on defence in an antitrust case is absent from the existing legal framework of China. However, the SPC Draft Judicial Interpretation have added the provisions regarding pass-on defence into the legal landscape. As articulated in Article 45, when a plaintiff seeks compensation from the defendant, and the defendant is able to substantiate that the plaintiff has transferred a portion or the entirety of its economic losses to third parties, the court may deduct the transferred losses when determining the amount of compensation.

Existing laws and regulations do not expressly clarify whether pre-judgment interest can be incorporated into the damages awarded in cases of monopolistic practice. In principle, the difficulty of assessing the amount of economic losses and the applicable compensation duration, particularly in cases concerning monopolistic acts that entail tortious disputes, seemingly engender a lack of well-founded grounds for determining the pre-judgment interest in judicial practice. However, the SPC has previously indicated, in certain tort cases, that if the amount of damages and the timing for calculating the corresponding interest are both ascertainable, such interest should be considered as a component of the plaintiff’s financial losses, thereby making it possible for the plaintiff to claim for the pre-judgment interest pertaining to the damages. 

Regarding post-judgment interest, in instances where the infringer fails to fulfill the compensation obligations within the designated timeframe as outlined in the court’s judgment, the infringer shall pay an amount equal to double the interest accrued on the damages during the deferred performance period.

As per Article 1168 of the Civil Code, it is established that when two or more undertakings engage in a tortious act collectively, resulting in harm to third parties, they are bound by joint and several liability. Therefore, if the alleged monopolistic behaviours have been committed jointly by multiple undertakings, such as in cases where multiple undertakings entered into a horizontal monopoly agreement or jointly conducted abuse of market dominance, the plaintiff who suffered damages may claim for joint and several liability against such undertakings.

There exists the concept of right of contribution within the civil proceeding context in China. As articulated in Article 178 of the Civil Code, the apportionment of liability shares among parties jointly and severally liable shall depend on the magnitude of their respective responsibilities. In instances where the actual amount of damages assumed by a party jointly and severally liable exceeds the portion that the party should have assumed according to its gravity of liability, the party shall be entitled to claim indemnities from other parties joint and severally liable.

In the realm of Chinese civil proceedings, an equivalent concept of injunction, as applicable in common law jurisdictions, does not exist. Permanent relief measures, including actions like halting infringement and compensating for losses in Chinese civil monopoly cases, are generally established by the court through the court trial and final judgment. Concurrently, interim reliefs, commonly referred to as preservation measures in China, can also be adopted during or preceding civil proceedings.

As stipulated by the Civil Procedure Law, preservation measures fall into two categories; preservation during litigation and pre-litigation preservation. Regarding the former, when a defendant’s actions or other factors might complicate the future enforcement of a judgment or cause harm to the plaintiff, the court can, upon the plaintiff's application or at its own discretion, decree the preservation of the defendant’s assets or issue orders prohibiting certain acts.

Furthermore, during the pre-litigation phase, parties retain the right to seek court-ordered preservation when urgent circumstances imperil their legitimate rights and interests, potentially leading to irrevocable harm if preservation measures are not implemented. For pre-litigation preservation applications, the provision of a guarantee by the applicant is necessary. In contrast, for preservation during litigation, the court may decide to mandate the applicant to furnish a guarantee based on the actual circumstances of the case.

Arbitration, court mediation, people’s mediation and commercial mediation represent prevalent avenues of alternative dispute resolution for addressing civil conflicts.

Arbitration stands as a resolution mechanism contingent upon the parties’ mutually agreed arbitration contract. However, given that monopoly disputes encompass market competition that may affect public interest matters, exceeding the typical scope of arbitration clauses, the SPC has stated that “arbitration clauses cannot automatically preclude court jurisdiction” in numerous instances. Consequently, arbitration’s applicability to monopoly disputes tends to be limited within the Chinese judicial practice.

Mediation, distinguished by its voluntary nature, offers a potential way for addressing monopolistic disputes. Court mediation, serving as a fundamental part of litigation proceedings, can be organised by the court throughout the whole litigation process. Moreover, people’s mediation and commercial mediation are arranged by entities like people’s mediation committees and commercial mediation organisations, well-established in China. Following mediation efforts, parties can voluntarily finalise mediation agreements to resolve disputes; any breach of such agreements can subsequently be brought before the court for further dispute resolution. While mediation is widely recognised as a convenient and cost-effective route for conflict resolution, its utilisation in civil monopoly cases remains rare, largely due to the intricate nature of such disputes, which often makes achieving consensus between parties become quite difficult.

Litigation funding of civil claims is less evolved in China, while the law has not provided any provisions on it. In practice, there is no well-known antitrust case where third-party funding has been adopted.

The costs in a civil lawsuit could consist of the litigation fee charged by the court, the attorneys’ fee and other reasonable expenses arising from the lawsuit, such as notarisation fees, travel expenses, etc.

The Judicial Interpretation of Monopoly-related Dispute Cases provides that the court may, upon the request of the plaintiff, include reasonable expenses incurred by the plaintiff for investigating and preventing the monopolistic act in the scope of losses for compensation. The typical expenses that may be supported in judicial practice include the court fees, investigation and evidence collection fees (eg, notary fees, document copy fees, appraisal fees) and attorneys’ fees.

Normally, courts will not order the plaintiff to provide security for the defendant’s costs. An exception is that the plaintiff applying for pre-litigation preservation should provide for security.

As with other types of cases, against a first instance judgment of a monopoly-related dispute case, the plaintiff and the defendant shall both have the right to file an appeal with the next higher-level court within the prescribed time limit after the service of the written judgment, except if it is made by the SPC. An appeal can be filed based on the grounds of wrongful application of law, wrongful finding of fact and procedural violation.

It should be noted that according to the Provisions of the Supreme People’s Court on Several Issues concerning the Intellectual Property Division, the Intellectual Property Division of the Supreme People’s Court has the jurisdiction to hear the appeals of the civil monopoly cases whose first instance trial has been concluded.