Clifford Chance
Antitrust litigation in China – an increasing tide?
21 June 2012
The Supreme People's Court (SPC) published its long-awaited Provisions on Several Issues Regarding the Application of Laws to Civil Disputes Involving Monopolistic Acts (Antitrust Litigation Rules) on 3 May 2012. The Antitrust Litigation Rules are a judicial interpretation for civil procedure in cases involving antitrust litigation in China, and provide guidance on inter alia standing, jurisdiction, rights of action, burden of proof, evidence, liability and limitations. The Antitrust Litigation Rules came into force on 1 June 2012.
The Antitrust Litigation Rules coincide with a steady increase in private enforcement of the Anti-Monopoly Law (AML) – the most recent cases include the on-going Qihoo 360 vs. Tencent abuse of dominance case heard in Guangdong, and the recent Ruibang vs. Johnson & Johnson resale price maintenance (RPM) case heard in Shanghai. According to recent statistics published by the SPC, since August 2008 when the AML came into force, China's courts have accepted 61 AML-related actions (with a little of over 50 actions concluded as at end 2011). Not all the court judgments in these cases are readily available in the public domain. The available information shows that the majority of the actions relate to abuse of dominance claims, a handful are cartel cases, and the courts recently heard the first case involving a vertical agreement. The majority of these cases have either been dismissed by the courts for lack of evidence or have resulted in settlement for relatively insignificant sums of money.
The Antitrust Litigation Rules are expected to spur private litigation involving antitrust disputes. They clarify a number of procedural matters but do not address certain procedural issues that the earlier draft judicial interpretation sought to cover such as the use of the decisions of China's antitrust enforcement authorities as evidence of unlawful conduct, calculation of damages, and passing on defence. Below we summarise and discuss the salient provisions of the Antitrust Litigation Rules, and consider how this may impact future cases.
