By: Susan Ning and Shan Lining.
On 30 October 2010, it was reported in the press1 that the People’s Court has thus far accepted 11 antitrust cases (for the period 1 August 2008 to June 2010). Out of these 11 cases, 10 were antitrust civil cases (see our previous article entitled Two Years on, Ten Antitrust Private Actions) and 1 was an antitrust administrative action.
However, there has not yet been a private antitrust case in which the plantiff was successful in his or her claim. The People’s Court intends to address this issue by promulgating judicial interpretations in relation to antitrust civil litigation.
Article 50 of the Anti-Monopoly Law (AML) provides a basis for antitrust civil actions (where private litigants may sue entities for anticompetitive conduct) whereas article 51 of the AML provides some basis for antitrust administrative actions (where private litigants may sue administrative bodies for abusive anticompetitive conduct).
Media reports have noted that none of the plaintiffs “won” these 11 cases and this fact has caught the attention of the People’s Court. According to Chief Judge of the Intellectual Property Court of the People’s Court, He Zhonglin, the root of the problem lies in the difficulties being faced by plaintiffs in adducing evidence in relation to market definition; dominance or abuse of dominance by defendants.
Media reports have noted that the People’s Court are currently formulating judicial interpretations in relation to civil antitrust litigation. According to these reports, the judicial interpretations in relation to civil antitrust litigation will cover a number of topics, including jurisdiction issues; plaintiff’s standing issues; group litigation and burden of proof. More specifically, the following matters will also be addressed:
- the judicial interpretation is expected to provide the extent to which a defendant (being accused of abuse of dominance) will be required to give evidence to refute an allegation of dominance;
- the judicial interpretation is expected to outline a procedural regime for witnesses and experts. Specifically, it is expected that plaintiffs and defendants may be able to call on experts (in economics and antitrust law) to appear in court to assist with their cases; and
- the judicial interpretation is expected to outline the types of damages that plaintiffs can expect to receive, including possibly the remedy of double damages.
It appears that the People’s Court has already held several rounds of consultations or workshops to discuss these judicial interpretations.
Much will become clearer after the judicial interpretations come into effect. We anticipate that private litigants would then have a clearer understanding of what is required (e.g. the types of evidence required) to launch successful antitrust cases. Perhaps the most striking feature of the draft judicial interpretations is that there may be scope for private litigants to seek double damages.
1. See for instance: http://www.cb.com.cn/1634427/20101030/161151.html