Burden of Proof

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By Susan Ning, Peng Heyue, Yang Yang, Qiu Weiqing, Sarah Eder, and Guo Shaoyi

Introduction

On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, marking the beginning of the first anti-monopoly case in the internet arena. Qihoo lost the first trial and appealed. On 16 October 2014, the Supreme Court handed down its final decision, rejecting Qihoo’s appeal and upholding the first-instance court judgment. This was the first anti-monopoly case heard by the Supreme Court. The Supreme Court’s judgment elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance, which offers guidance and rules for future anti-monopoly litigation, especially those concerning abuse of dominance.
Continue Reading The Supreme Court Goes Online with Anti-Monopoly Law Principles：A Review of Qihoo v.s. Tencent Abuse of Market Dominance Case

By Susan Ning, Kate Peng, Pulcheria Chung and Karen Ji

China’s Supreme People’s Court (“SPC”) issued its Provisions on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct (“SPC rules”) on May 3, 2012, effective on June 1, 2012.  Article 7 of the SPC rules differentiates between horizontal and vertical monopolistic agreements with regard to the plaintiff’s burden of proof on the element of anti-competitive effect.  Horizontal monopolistic agreements falling within Article 13 of the AM are presumed to have the effect of eliminating or restricting competition, unless the defendants can demonstrate otherwise.  For vertical monopolistic agreements under Article 14 of the AML, no such presumption will be made. 

By implication, the above differentiation would mean that the plaintiff in a vertical monopolistic claim must prove (1) the monopolistic agreement falls within Article 14 of the AML; (2) the agreement has anti-competitive effects; (3) it suffered damages because of the monopolistic conduct.  Whereas the plaintiff in a horizontal monopolistic claim only needs to prove item (1) and (3) abovementioned, and the defendant has the rebuttal burden to prove that the agreement would not eliminate or restrict competition.
Continue Reading Burden of Proof in Monopolistic Agreement Claims

By Susan Ning and Ding Liang King & Wood Mallesons’ Antitrust Group

The Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct (“Anti-Monopoly Judicial Interpretation”), as adopted at the 1539th Session of the Judicial Committee of the Supreme People’s Court (“SPC”) in January 2012, were issued on May 3, 2012 and came into force on June 1, 2012. The Anti-Monopoly Judicial Interpretationreflects important experience accumulated in the judicial practice of monopoly civil disputes and is expected to play an important role in monopoly civil dispute cases. This article will briefly discuss the key issues involved in the Anti-Monopoly Judicial Interpretation. 

I .The Drafting Background of the Anti-Monopoly Judicial Interpretation
Continue Reading Commentary on the Anti-Monopoly Judicial Interpretation

作者：宁宣凤 丁亮 金杜律师事务所反垄断组

《最高人民法院关于审理因垄断行为引发的民事纠纷案件应用法律若干问题的规定》（以下简称“反垄断司法解释”）已于2012年1月30日由最高人民法院审判委员会第1539次会议通过，于2012年5月3日公布，自2012年6月1日起施行。《反垄断司法解释》凝结了垄断民事纠纷案司法实践中积累的一些重要经验，将在未来垄断民事纠纷案中起到重要作用。本文将对《反垄断司法解释》所涉及的重要内容做简要的梳理和评述。

一、《反垄断司法解释》的起草背景

早在2008年8月1日《反垄断法》正式实施后，最高人民法院就已开始着手准备垄断民事纠纷案所能出现的各种问题。2008年10月24日，最高人民法院在天津召开研讨会，讨论人民法院在审理垄断民事纠纷案中急需解决的问题。
Continue Reading 反垄断司法解释评述

By Susan Ning,Liu Jia and Hazel Yin

On 3 May 2012,China’s Supreme People’s Court issued the Rules of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Caused by Monopolistic Conduct ("Rules").The Rules contain 16 articles covering standing of plaintiffs,jurisdiction,burden of proof,evidentiary rules,expert witness,the judicial process, form of civil liabilities and the statute of limitations.The Rules entered into force on 1 June 2012.

Compared to the draft Rules released last year for public comments ("Draft Rules")1,the Rules contain fewer articles and remain silent on a few issues that were previously addressed in the Draft Rules.This article discusses the major provisions in the Rules.Continue Reading Supreme Court of China Issues Judicial Interpretation Governing Private Antitrust Litigations