China Releases Judicial Interpretation for Hearing Civil Anti-Monopoly Actions

John Yong Ren, May 14, 2012

On May 8, 2012, China’s Supreme People’s Court ("SPC") released the Judicial Interpretation ("JI") on Anti-Monopoly Law ("AML") in Beijing. The JI, widely recognized as a milestone of private enforcement of the AML, would further shape the developments of antimonopoly law in China. (Download the English version of the JI.)

 
SPC had made preparations for AML civil trials for a long time. On July 28, 2008, the eve of the effective date of the AML, SPC issued the “Notice on Earnestly Study and Implement the AML” to People’s Courts of all levels; SPC indicated clearly in the Notice that all civil cases should be heard by the Intellectual Property Divisions of the People’s Courts. On September 8, 2008, an anonymous high-level judge of SPC's Intellectual Property Division told the People’s Courts (SPC’s official Newspaper) that the administrative procedure shall not be made as a precondition for an anti-monopoly civil lawsuit. The judge also said that SPC had established the special AML Tribunal in the Intellectual Property Division to hear future AML civil lawsuits.
 
No efforts have been spared to make the outcome of the AML JI possible. In April 2011, SPC released an AML JI draft for public comment, which produced two internal versions in September 2011 and January 2012, respectively. Furthermore, some symposiums and workshops were hosted or sponsored by SPC to discuss the draft, including the “2011 Forum on Anti-Monopoly Civil Litigation in China” held in June 2011 and “Antitrust Civil Litigation Forum: Issues, incentives, and evidence” in April 2012, co-organized by T&D Associates.
 
A brief summary of this AML JI follows below:
 
I. Jurisdiction
Only the intermediate courts located in the capital cities of province, and the courts specially designated by SPC could be the trial courts for an AML civil action.
 
II. Private enforcement v. Public enforcement
Investigations or decisions by administrative agencies such as NDRC or SAIC are not preconditions for the initiation of a private action in the courts. A person or company can bring an AML civil action directly before a court regardless of whether the case is investigated by agencies.
 
III. Burden of Proof
The JI provides very high-level provisions for burden of proof. A per se rule is applied to horizontal monopoly agreement cases. For abuse of dominance cases, the plaintiff has to prove the defendant’s dominance in the relevant market, and the defendant has to prove the justifications, if any.
 
IV. Evidences and Experts
The parties can apply to the trial court for experts' depositions regarding economics and industry knowledge. Public declarations on market shares could be accepted by the court as evidence of dominance for the defendant.
 
V. Damages
The double damages in previous drafts are now removed. One thing to be noted is that, according to JI, the plaintiff can claim ‘reasonable expenses’ occurred in investigating and deterring the monopolistic conducts, including the expenses resulting from retaining experts for their depositions in civil procedures.
 
VI. Limitation of Action
The limitation of actions for an AML case is two years. In the event that the monopolistic behavior is investigated by administrative agencies such as NDRC or SAIC, the limitation of action starts from the day when the agencies announce the decision on the monopolistic conduct.

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