By Susan Ning, Liu Jia and Angie Ng
On 25 April 2011, the Supreme People’s Court (the Court) published draft rules which govern Anti-Monopoly Law (AML) private actions (Draft Rules)1. These Draft Rules are entitled "Provisions on Issues Concerning the Application of Law in relation to Trials of Monopoly Civil Dispute Cases". The Court will consult on these Draft Rules till 1 June 2011.
We note that these Draft Rules provide for applicants to file "joint" applications with others against respondents. This article outlines what the Draft Rules say about joint applications and outlines how this interacts with the joint application regime pursuant to China’s Civil Procedure Law.
Article 5 of the Draft Rules state that AML private actions may be filed in three forms: (a) by way of a "separate" or individual applications; (b) by way of "joint" applications and (c) by way of "combined" applications. The term "joint applications" refer to situations where there are multiple applicants who wish to file joint suits for common causes of action. The term "combined applications" refer to a situation where applicants file a suit against a common respondent (or common respondents) in different courts. In this situation, the courts (which have been designated by the Supreme Court as possessing jurisdiction to hear AML applications) would have the power to "combine" or consolidate these applications.
China’s Civil Procedure Law also provides for a joint application regime. The following are the salient points to note in relation what China’s Civil Procedure Law says about joint applications:
• applicants may apply to courts jointly, if they have a common cause of action or if their action belongs to the same "category". This right to file joint applications is contingent upon the court approving such a joint action and contingent upon the applicants agreeing to file such an action together;
• in a situation where there are numerous applicants (within a joint application), representatives may be selected by the applicants. Actions undertaken by such representatives will be effective in relation to all joint applicants – save for certain situations including confirmations, modifications and waiver of claims of actions;
• the court possesses the right to issue a public notice – which states the particulars and claims (in respect of joint applications), instructing other potential applicants to file with the court within a certain time; and
• judgments or orders rendered by the court are effective for all joint applicants. The same judgments or orders are binding on applicants who have not filed with the court but instituted legal proceedings within the court’s time limit mentioned above.
Thus far (and as far as we are aware), there haven’t been any public joint AML applications before the courts in China. This is despite the fact that there have been a significant number of AML actions to date. According to the Supreme Court, between 1 August 2008 to 2010, approximately 29 AML actions have been concluded, among the total 43 AML actions accepted by courts in China.
It remains to be seen to what extent AML litigants in China would take up the "joint action" route. Such joint actions are akin to the US class action regime. We expect such joint applications to consist of mostly small to medium enterprises – as such actions provide the opportunity to pool resources.
1For a holistic and detailed introduction of the salient provisions within these Draft Rules, please refer to our articles entitled "Supreme People’s Court Issues Draft Rules Governing Private Actions under the Anti-Monopoly Law" and "A Further Look At The Draft Rules Governing AML Private Actions".