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.
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