Antitrust Litigation 2024 Comparisons

The legislative framework for antitrust civil litigation in China can be broadly divided into substantive rules and procedural rules.

Substantive Rules

Regarding substantive rules, the primary governing law is the Anti-monopoly Law of the People’s Republic of China (AML), which was initially enacted in 2008 and subsequently revised in 2022. The Law provides the foundation for regulating monopolistic practices, including monopoly agreements, abuse of dominant market positions, and concentrations of undertakings that may exclude or restrict competition. Its purpose is to prevent and curb monopolistic behaviours, protect fair competition, and safeguard consumer interests and social public interests. Among the monopolistic practices under regulation, the behaviours subject to antitrust civil litigation primarily include monopoly agreements and abuse of market dominance.

In addition to the AML, various supplementary administrative regulations, departmental rules, guidelines, and judicial interpretations issued by the State Administration for Market Regulation (SAMR), the national competition authority, and other relevant government departments collectively form the substantive legal framework applicable to antitrust civil litigation. These supplementary documents mainly include the Provisions on Prohibition of Monopoly Agreements and the Provisions on Prohibition of Abuse of Market Dominance, as well as the newly enacted Judicial Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Monopolistic Conduct (the “Judicial Interpretation on Monopoly-related Disputes”) in 2024 (see 1.2 Recent Developments for the main content of this judicial interpretation).

Procedural Rules

The general civil litigation procedural rules stipulated in the Civil Procedure Law of the People’s Republic of China (Civil Procedure Law) and relevant judicial interpretations also apply to antitrust civil litigation cases. Additionally, the Judicial Interpretation on Monopoly-related Disputes has made special provisions for antitrust civil litigation cases regarding jurisdiction rules, burden of proof, and the effectiveness of evidence, etc.

Recent Legislative Developments

On 24 June 2024, the Supreme People’s Court of China (SPC) formally issued the Judicial Interpretation on Monopoly-related Disputes. This new interpretation represents a significant milestone in China’s antitrust litigation landscape, reflecting the evolving legal framework and the judiciary’s commitment to addressing the complexities of monopolistic behaviours.

By integrating and expanding upon the 2012 Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Arising from Monopolistic Conduct, the Judicial Interpretation on Monopoly-related Disputes, consisting of 51 articles, introduces comprehensive and detailed regulations that span both procedural and substantive aspects of antitrust civil litigation.

Regarding procedural issues, jurisdictional rules for cases concerning overseas monopolistic behaviours and arbitration agreements 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 also been further clarified and guided in the Judicial Interpretation on Monopoly-related Disputes, such as the single economic entity theory, the assessment of vertical restraints, the assessment of concerted practice, the definition method of a relevant market, and the determination of market dominance, etc.

Recent Representative Cases

To fully leverage the guiding role of landmark cases and correctly apply the new Judicial Interpretation on Monopoly-related Disputes on antitrust civil litigation, the SPC released several recently concluded notable antitrust cases on the same day. Some of the key cases are summarised below.

Assessment of abuse of market dominance under patent license arrangement

In the Loratadine API abuse of dominance case (case No (2020) ZUI GAO FA MIN ZHI ZHONG No 1140), the Court acknowledged that the exclusivity conferred by a patent is a legal right. It determined that a patent holder’s decision not to license an API is not inherently anti-competitive and does not necessarily constitute an abuse of market dominance. These restrictions are considered acceptable as long as they remain within the scope of legal rights.

Criteria for identifying hub-and-spoke agreements

In the case of hub-and-spoke agreements regarding industrial lubricant (case No (2021) ZUI GAO FA MIN ZHI ZHONG No 1315) which is the first case regarding hub-and-spoke agreements concluded by Chinese courts, the Court held that the defendant’s actions of organising multiple distributors to bid and designating specific distributors to win with colluded prices constituted hub-and-spoke agreements, thereby forming a horizontal monopoly agreement that divided the sales market and fixed prices. The Court clarified the legal nature of hub-and-spoke agreements and the factors to be considered in judicial practice, providing guidance for identifying such monopolistic behaviour in judicial practice.

Article 60 of the AML states that an undertaking that carries out monopoly acts and causes losses to others will bear civil liability under the Law. According to Article 43 of the Judicial Interpretation on Monopoly-related Disputes, the court may order the undertaking that conducted monopolistic behaviour to bear civil liabilities such as ceasing infringement and compensating for losses based on the defendant’s claims and facts ascertained. Article 48 of the Judicial Interpretation on Monopoly-related Disputes and Article 153 of the Civil Code, where the clauses of the contracts, the resolutions 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 court will rule such clauses or documents as invalid.

In terms of the types of claims, both standalone and follow-on claims are available. Article 2 of the Judicial Interpretation on Monopoly-related Disputes stipulates that the plaintiff may directly file an antitrust lawsuit to the court or file a civil lawsuit after the decision of the AML enforcement agency that monopolistic conduct exists takes effect. If the filed case satisfies the acceptance criteria stipulated by the laws, the court will accept the case. However, the second paragraph of Article 2 also provides that the court will not accept a case where the plaintiff files the lawsuit merely requesting the court to confirm that the defendant’s specific act constitutes monopoly but does not request the defendant to bear civil liability.

According to Article 4 of the Judicial Interpretation on Monopoly-related Disputes, first instance monopoly disputes are handled centrally by intellectual property courts and intermediate people’s courts determined by the SPC. For appeals against first instance monopoly litigation, the second instance case will be handled by the Intellectual Property Court of the SPC.

Monopoly-related disputes may be transferred between courts. Relevant cases should be transferred where the dispute was not filed by the cause of a monopoly dispute but the defendant then raises a defence 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 court does not have monopoly jurisdiction over civil cases.

According to Article 10 of the Judicial Interpretation on Monopoly-related Disputes, if the AML enforcement authority has confirmed the existence of a monopolistic practice and this decision has not been challenged through administrative litigation within the statutory period, or if it has been upheld by an effective ruling of a court, the plaintiff in a related civil monopoly dispute case is not required to provide further evidence to prove these facts, unless there is sufficient evidence to the contrary. In addition, 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 (the “Judicial Interpretation of the Civil Procedure Law”) also provides that matters recorded in instruments prepared by national authorities or other organisations with lawful social management functions will 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 litigation. The probative value of the NCA’s effective decision has also been confirmed in judicial practice. In a recent case, Miao Chong v SAIC-GM, the SPC affirmed the probative value of NCA decisions in follow-on claims.

An NCA cannot intervene in damages actions on its own initiative but only participate in the follow-on litigation at the request of the courts. As provided in the Judicial Interpretation on Monopoly-related Disputes, the courts may request the NCA that has made the penalty decision explain the relevant circumstances if necessary.

As for the decisions of foreign NCAs, they may only serve as reference to the court, which may only have limited influence.

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 (the “Civil Procedure Law”) and the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (the “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 on Monopoly-related Disputes provides more specific rules on allocation of burden of proof in several scenarios.

Horizontal monopoly agreements

In general, for horizontal monopoly agreements, the plaintiff will 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 will bear the burden of proving that the agreement does not have the effect of excluding or restricting the competition.

In cases where horizontal monopoly agreements are established through concerted practices by the defendants, the plaintiff can shift the evidential burden to the defendants by demonstrating:

• a consistency of market conduct among the defendants; and
• evidence of a meeting of minds or exchange of sensitive information between the defendants, or an explanation of changes in the market structure or competitive landscape.

Once these elements are established, the defendants must then justify the consistency of their conduct.

Vertical monopoly agreements

Article 18 of the AML makes it clear that agreements involving the resale price maintenance (RPM) will not be prohibited if the undertakings can prove that the agreements do not have the effect of eliminating or restricting competition, indicating that the RPM is presumed to be illegal. To be consistent with the AML, Article 21 of the Judicial Interpretation on Monopoly-related Disputes provides that the defendant will bear the burden of proving that the disputed RPM agreement does not have the effect of excluding or restricting the competition.

In cases involving non-price vertical monopoly agreements, since neither the AML nor the Judicial Interpretation on Monopoly-related Disputes directly addresses the allocation of the burden of proof, the general principle that the plaintiff bears the burden of proof for its claims may still apply.

Abuse of market dominance

For cases concerning abuse of market dominance, the Judicial Interpretation on Monopoly-related Disputes provides a general principle for the allocation of burden of proof. In other words, the plaintiff will demonstrate that the defendant possesses market dominance in the relevant market and that it has abused the dominance by violating Article 22 of the AML, while the defendant will prove that it has justifiable reasons for conducting the behaviours.

Due to the difficulty plaintiffs typically face in judicial practice in proving that the defendant holds a dominant market position, the Judicial Interpretation on Monopoly-related Disputes stipulates that plaintiffs only need to bear the initial burden of proof to balance the evidential burden. According to Article 29 of the Judicial Interpretation on Monopoly-related Disputes, if the plaintiff provides evidence showing that the defendant meets any of the following conditions, the court may preliminarily determine that the defendant holds a dominant market position based on factors such as market structure and competitive landscape, unless there is sufficient evidence to the contrary.

• The defendant maintains a price significantly higher than the competitive market level for an extended period, or the quality of the defendant’s commodities significantly declines over a long period without a substantial loss of users, and the relevant market clearly lacks competition, innovation, and new entrants.
• The defendant maintains a significantly higher market share compared to other undertakings for an extended period, and the relevant market clearly lacks competition, innovation, and new entrants.

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 effect 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 a 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 court believes that the existence of a fact to be proved is highly probable upon examination and in light of the relevant facts, it will affirm the existence of that 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 court believes that the contrary fact to be proved is unclear upon examination and in light of the relevant facts, it will affirm that the fact does not exist.

The clear provision on pass-on defence in an antitrust case is absent from the existing legal framework in China. The draft version of the Judicial Interpretation on Monopoly-related Disputes had included provisions regarding the pass-on defence. Article 45 of the draft had stated that when a plaintiff sought compensation from the defendant and the defendant was able to substantiate that the plaintiff had transferred a portion or the entirety of its economic losses to third parties, the court could deduct the transferred losses when determining the amount of compensation. However, the Article was removed entirely in the final enacted version.

According to the Civil Code and the Judicial Interpretation on Monopoly-related Disputes, the statute of limitations for relevant parties to file claims for damages arising from monopolistic conduct 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 an NCA. The limitation periods will be recalculated from the date on which the plaintiff knows or should have known that the NCA’s handling decision is legally effective.

The typical timetable for an antitrust damages claim can range from a few months to several years depending on various factors that may affect litigation proceedings such as whether an objection to jurisdiction is raised and whether the case involves 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 will conclude the case within six months from the date of 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. In cases where the summary procedure is adopted, the court will conclude within three months from the date of official acceptance, with the possibility of an extension upon approval from the president of the court if necessary; and
• for a case on appeal against a judgment, the court will 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 will conclude within 30 days from the date of official acceptance. The judgment and the written order of a court of second instance will be final.

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 joint litigation by the court. The joint litigation framework is indeed applicable to monopoly disputes, as it was subsequently incorporated into the Judicial Interpretation on Monopoly-related Disputes, 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 10), 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 representative litigation is initiated, those parties can directly co-ordinate 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.

Public Interest Litigation

As the other type of collective redress mechanism, public interest litigation has been incorporated in the AML, 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 this public interest litigation is a legally endowed power granted to the People’s Procuratorate by law. There is therefore no authorisation or permission needed from victims. Consequently, any resulting compensation from the 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 serve as a remedy for the public interest as a whole.

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.

Claims for damages before the courts are based on Article 60 of the AML and Article 2 of the Judicial Interpretation on Monopoly-related Disputes. Both direct and indirect purchasers can bring claims for damages as long as they suffer losses attributed to monopolistic 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.

Under the collective redress system in China, unlike the Western-style class action system, there is no class 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 representative litigation against such illegal monopolistic behaviours.

As stated in 4.1 Statutory Basis, 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 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 an 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 the consultation is unsuccessful, the court reserves the authority to directly designate representatives on behalf of the plaintiffs.

In cases of public interest litigation, when the People’s Procuratorate intends to file a lawsuit against monopolistic conduct, it will make a public announcement in advance for the period of 30 days. This announcement will encompass basic information about 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 People’s Procuratorate may then formally initiate civil public interest litigation.

Jurisdiction

Please refer to 2.2 Courts, which provides a comprehensive overview of the hierarchical jurisdiction regulations pertinent to antitrust lawsuits. As to territorial jurisdiction, Article 5 of the Judicial Interpretation on Monopoly-related Disputes stipulates that the territorial jurisdiction of civil monopoly disputes will 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-monopoly disputes categorised as either tort or contract disputes. In scenarios where an anti-monopoly dispute can be classified as a tort dispute, the court at the place where the tort occurs or the defendant’s domicile is located will have jurisdiction over the case. Concurrently, an anti-monopoly dispute categorised as a contract-based issue will 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 AML stands as the primary legislative framework governing monopolistic behaviours currently and provides the legal foundation for concerned parties to bring civil lawsuits related to monopolistic practices. As articulated in Article 2 of the AML, the legislation applies to monopolistic activities within the territory of China as well as to monopolistic behaviours outside of the territory of China that have the effect of precluding or restricting competition within the domestic market.

In China, a disclosure or discovery mechanism equivalent to those found in common law jurisdictions is not available in civil lawsuit proceedings. This means that litigants are not legally obliged 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 proceedings. 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. At the trial stage, the evidence should be presented in court and cross-examined by the litigants.

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 example, 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 disclose the documentary evidence. The applicant must provide within this written application the precise description of the documentary evidence 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 the application is accepted and approved by the court but the opposing party refuses to provide the documentary evidence as requested without justifiable reasons, the court has 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 assertion.

At present, China has not introduced the legal professional privilege system within the context of civil lawsuit proceedings. Therefore, even though lawyers are obliged 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 the pertinent evidence if it considers it necessary.

There are currently no established laws or regulations to definitively address the question of whether leniency or settlement materials submitted to NCAs 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 the materials are necessary to ascertain the facts of the case.

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 trials, furnish testimony, and field enquiries from both judges and litigants, unless there are exceptional statutory circumstances not to. If witnesses encounter 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 monopoly 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 on Monopoly-related Disputes, the parties may apply to the court for one or two persons with expertise in the area involved in the case, economics, etc, to appear before the court and give explanations on a specialised issue in the case.

According to the Judicial Interpretation on Monopoly-related 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 these disputes.

The losses suffered by the plaintiff attributed to the alleged monopolistic conduct include direct losses and reduced acquirable benefits if the act had not occurred. For determination of the losses, the following factors may be taken into account:

• commodity prices, operating costs, profits, market shares etc in the relevant markets before implementation of the alleged monopolistic act or after implementation of the alleged monopolistic act, and during the implementation thereof;
• commodity prices, operating costs, profits etc in comparable markets that are not affected by the monopolistic act;
• commodity prices, operating costs, profits, market shares etc of comparable undertakings that are not affected by the monopolistic act; and
• other factors that can reasonably prove that the plaintiff has suffered losses due to the alleged monopolistic act.

Where the plaintiff has evidence to prove that the alleged monopolistic act has caused losses to it, but it is difficult to determine the specific amount of losses pursuant to the provisions of the preceding paragraph, the court may, based on the plaintiff’s assertion and the evidence of the case, determine a reasonable compensation amount discretionarily by taking the nature and extent, duration of the alleged monopolistic act and benefits obtained therefrom into account.

Based on the plaintiff’s claim and the specific circumstances of the case, the court may include reasonable expenses incurred by the plaintiff for the investigation and curbing of the monopolistic act, including reasonable market survey fees, economic analysis fees, lawyer’s fees etc, in the scope of losses for 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 engenders 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, the 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 fulfil the compensation obligations within the designated timeframe as outlined in the court’s judgment, the infringer will 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 the undertakings are jointly and severally liable.

The concept of right of contribution exists in the civil proceeding context in China. Under Article 178 of the Civil Code, the apportionment of liability shares among parties jointly and severally liable will 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 will be entitled to claim indemnities from other parties jointly 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 infringements 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 the civil proceedings.

As stipulated in 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 in China.

Arbitration serves as a resolution mechanism based on the parties’ mutually agreed arbitration contract. However, according to Article 3 of the Judicial Interpretation on Monopoly-related Disputes, where a party files a monopoly-related civil lawsuit with the court and the other party claims that there is a contractual relationship between the two parties and that there is an arbitration agreement, the court will not uphold the claim. In addition, given that monopoly disputes encompass market competition that may affect public interest matters, exceeding the typical scope of arbitration clauses, the SPC has also stated that “arbitration clauses cannot automatically preclude court jurisdiction” in numerous instances. Consequently, arbitration’s applicability to monopoly disputes tends to be limited in Chinese judicial practice.

Mediation, distinguished by its voluntary nature, offers a potential way to address monopoly disputes. Court mediation, serving as a fundamental part of litigation proceedings, can be organised by the court throughout the whole litigation process. People’s mediation and commercial mediation can also be 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 and any breach of the 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 the disputes, which often makes achieving consensus between parties 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 on Monopoly-related Disputes 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 court fees, investigation and evidence collection fees (eg, notary fees, document copy fees, appraisal fees) and attorneys’ fees.

Courts will not normally order the plaintiff to provide security for the defendant’s costs. An exception to this 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 will 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, unless 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 SPC has jurisdiction to hear the appeals of the civil monopoly cases whose first instance trial has been concluded.

The competition and antitrust litigation landscape in China is evolving rapidly, driven by significant legislative changes and increased regulatory activity.

• Enhanced alignment between administrative and judicial enforcement: the Judicial Interpretation on Monopoly-related Disputes is likely to bolster the alignment between administrative and judicial enforcement, echoing the need to improve the mechanism for connecting administrative law enforcement and judicial procedures and thereby maintaining fair competition as provided in the AML.
• Lowered barriers for plaintiffs: the easing of evidential burdens such as rules on shifting burdens of proof and the establishment of presumptions based on administrative findings which means plaintiffs can leverage administrative decisions to substantiate their claims, reducing the need for extensive economic analysis and expert testimony, will likely encourage more plaintiffs to pursue antitrust claims.
• Focus on the digital economy and intellectual property: the digital economy and intellectual property are areas where monopolistic practices can have profound implications. The Judicial Interpretation on Monopoly-related Disputes acknowledges this and provides specific guidance on how to address these issues.
• Increased role of economic analysis: the incorporation of economic analysis into antitrust litigation underscores the increasing sophistication and specialisation of this field. The courts will rely more heavily on economic experts to assess market dynamics and the competitive effects of business conduct. It fully reflects the trend of the development of antitrust litigation in the professional direction. It is expected that the role of expert witnesses or expert assistants such as economists in antitrust litigation will become increasingly prominent and both plaintiffs and defendants should therefore be prepared to present detailed economic evidence and expert testimony to support their positions in antitrust cases.