Private Antitrust Litigation 2018
2019-01-01
Legislation and jurisdiction
1 How would you summarise the development of private antitrust litigation in your jurisdiction?
The Antimonopoly Law (AML) of the People's Republic of China entered into effect in 2008. The AML covers:
• horizontal and vertical monopoly agreements among undertakings;
• abuse of dominant position by undertakings;
• concentration of undertakings; and
• administrative monopoly by administrative authorities and other public agencies authorised to perform public functions.
To better illustrate the definition of relevant market, the Antimonopoly Commission of the State Council issued the 'Guidelines on Defining Relevant Market' (the Guidelines) in 2009. The economic methodology of demand-side substitution, supply-side substitution and the economic analysis tool of hypothetical monopolist test are introduced in the Guidelines and followed by the courts in antitrust adjudications.
In 2012, the 'Interpretation on Application of Laws in Hearing Civil Disputes Arising from Monopolistic Conduct' (AML Interpretation) was issued by the Supreme People's Court. The AML Interpretation clarifies issues concerning jurisdiction, burden of proof, evidentiary rules and expert witnesses.
In August, 2014, the Standing Committee of the National People's Congress (NPC) passed the Decision of Establishing Intellectual Property Courts in Beijing, Shanghai and Guangzhou. Three intellectual property (IP) courts were designed to try cases involving antitrust and IP issues. In 2016, the Beijing IP Court processed 161 antitrust cases.
In early 2017, four new specialised IP tribunals were established in four cities: Nanjing, Suzhou, Chengdu and Wuhan. The four specialised IP tribunals are attached to the intermediate courts of the four cities. Unlike the IP courts in Beijing and Shanghai that only have jurisdiction over antitrust cases within their own cities, each of the four IP tribunals has cross-regional jurisdiction over the entire province or multiple cities within that province. For example, the Suzhou IP Tribunal has jurisdiction over antitrust cases from four cities of Jiangsu province, while the province’s nine remaining cities fall into the juris- diction of the Nanjing IP Tribunal.
In late 2017, more specialised IP tribunals were established in many other cities such as Shenzhen, Fuzhou. The jurisdiction of the newly established tribunals and their relationships with the intermediate courts are similar to that of the earlier established ones.
The People's Court processed fewer than 50 antitrust cases at first instance before 2012, while in 2015 this number exceeded 150 and, in 2016, the Beijing IP Court alone has processed 161 antitrust cases. The figures show an increasing trend of antitrust litigation in China for the foreseeable future.
Landmark private antitrust litigation cases in China are as follows:
• Qihoo v Tencent;
• Huawei v InterDigital;
• Rainbow v Johnson & Johnson;
• Mishi v Qihoo 360;
• Ningbo Magnet Companies v Hitachi Metals;
• Junwei Tian v Beijing Carrefour Shuangjing Store and Abbott Shanghai;
• Hytera v Motorola; and
• Yutai v Hainan Price Bureau.
Note that in the case of Yutai v Hainan Price Bureau (Yutai), the courts, for the first time, had the chance to end the divergence in the approaches adopted by the courts and the Anti-Monopoly Enforcement Agencies (AMEAs). For a long time, the courts had adopted an approach that requires the plaintiffs to prove the RPM's effect of eliminating and restricting competition, whereas the AMEAs were not required to do so in their decisions; in other words, RPM was generally deemed unlawful by the AMEAs despite its effects. The final verdict of the Hainan High People's Court showed the courts' respect to the AMEAs' practices in their enforcement of the AML regarding RPM. The companies who are doing businesses in, or with China, should be advised to carefully arrange RPMs, even if the arrangements may ultimately benefit the consumers. The reason for the advice is simple: once the AMEAs have identified the RPMs as violations of the AML in their decisions; according to Yutai, the chance of challenging them is slim.
2 Are private antitrust actions mandated by statute? If not, on what basis are they possible? Is standing to bring a claim limited to those directly affected or may indirect purchasers bring claims?
Private antitrust actions are not mandated in the AML.
For contractual disputes or tort disputes, undertakings may bring antitrust civil litigations under the AML. Article 50 of the AML provides that, where the monopolistic conduct of an undertaking has caused losses to others, it shall bear civil liabilities according to law.
An undertaking may also bring antitrust administrative litigation under article 53 of the AML, where it is dissatisfied with the decision made by the Anti-Monopoly Enforcement Agencies (AMEAs).
There is no criminal liability for monopolistic conduct under the AML.
Since the AML and other regulations make no distinction between direct and indirect purchasers, the general rules should apply.
Pursuant to article 119 of the Civil Procedure Law, the claimant should have a direct interest in the case. Although the definition of 'direct interest' remains unclear, considering article 1 of the AML Interpretation, claimants who have standing to bring a lawsuit are not only limited to direct purchasers or those directly affected, but also include those who suffer direct or indirect loss, or parties disputing a contract or disputing the terms of articles of association of industry associations. Therefore, private parties, including indirect purchasers, who suffer loss from conduct in violation of the AML, or who rely on the AML in disputes concerning contracts or articles of association of industry associations, may bring lawsuits under the AML. In practice, despite the lack of legal basis, the Beijing Intellectual Property Court expressed its opinions on this issue in Junwei Tian v Beijing Carrefour Shuangjing Store and Abbott Shanghai, a case brought by an end-consumer acting as an indirect purchaser and claiming for loss on the basis of an administrative penalty decision against Abbott, and held that Junwei Tuan, as an indirect purchaser, had the right to bring an antitrust action in court. In the appeal, the Beijing High People's Court affirmed that the Beijing IP Court has jurisdiction over the antitrust case and rejected the juris filed by Abbott and the French retailer, Carrefour.
3 If based on statute, what is the relevant legislation and which are the relevant courts and tribunals?
The AML provides the substantive grounds for bringing private antitrust litigation as follows:
• private antitrust litigation against horizontal monopoly agreements: article 13 (horizontal monopoly agreements) and article 16 (monopoly agreements by industrial associations) of the AML;
• private antitrust litigation against vertical monopoly agreements: article 14 (resale price maintenance (RPM)) of the AML; and
• private antitrust litigation against abuse of dominance: article 17 of the AML.
Pursuant to article 3 of the AML Interpretation, intermediate people's courts of cities where the people's governments of provinces, autonomous regions and municipalities directly under the central government are located, those of cities separately designated in the state plan, and those designated by the Supreme People's Court shall have jurisdiction over private antitrust lawsuits as courts of first instance. Meanwhile, subject to the approval by the Supreme People's Court, basic people's courts may also try those cases.
In addition, the Beijing, Shanghai and Guangzhou IP courts and other specialised IP tribunals have the jurisdiction to try antitrust cases. In addition, the unified IP Appellate Court may be established to review appeals against judgments made by the specialised IP Courts, specialised IP tribunals and general courts concerning antitrust issues. The main procedural rules for bringing private antitrust actions in China are laid down in:
• the AML;
• the AML Interpretation;
• the Civil Procedure Law; and
• the Civil Procedure Law Interpretation.
4 In what types of antitrust matters are private actions available? Is a finding of infringement by a competition authority required to initiate a private antitrust action in your jurisdiction? What is the effect of a finding of infringement by a competition authority on national courts?
According to practice, the following conduct is subject to private antitrust actions:
• horizontal or vertical monopoly agreements reached between undertakings;
• abuse of dominant market position; and
• abuse of administrative power to eliminate or restrict competition.
The concentration of undertakings is eligible for private action, because the Regulations on Causes of Action in Civil Cases promulgated by the Supreme People's Court confirms concentration of under- takings as a type of civil case. In practice, however, merger cases have not yet been raised.
Neither the AML nor the AML Interpretation requires a finding of infringement by an AMEA as a precondition to initiate a private antitrust action. On the contrary, pursuant to article 2 of the AML Interpretation, a private antitrust action can be brought directly before the court.
Nevertheless, the decisions of the AMEAs are useful in follow-on litigation; the finding of AML violation by the AMEAs can be submitted as persuasive evidence in private antitrust actions. Since the AMEAs at central level normally have more resources and experience than their subordinates at provincial level, their findings of infringement are usually more likely to be accepted by the court.
5 What nexus with the jurisdiction is required to found a private action? To what extent can the parties influence in which jurisdiction a claim will be heard?
The nexus required in antitrust litigation is the same as in other civil actions, and the parties have the liberty of forum-shopping in accordance with laws and regulations.
Generally, the court may exercise jurisdiction over a defendant who resides or conducts business within the territory of the said court, regardless of the defendant's nationality.
For contract disputes, parallel jurisdictions would exist between where the defendant is domiciled and where the contract is performed.
For tort disputes, they shall come under the jurisdiction of the court of the place where the tort was committed, where the tortious consequence takes place or where the defendant is domiciled.
A plaintiff may choose from the above venues to file the lawsuit.
6 Can private actions be brought against both corporations and individuals, including those from other jurisdictions?
Yes. A private action can be brought by or be brought against any citizen, legal person or other organisation, regardless of nationality, place of domicile or habitual residence. For foreign defendants who have no domicile or residence within China, the jurisdiction may be exercised upon claims arising from its conduct or property. As for private antitrust litigation, the court's jurisdiction may be founded, if the alleged conduct, wherever it occurs, has an effect on the market competition in China.
Private action procedure
7 May litigation be funded by third parties? Are contingency fees available?
There are no champerty rules established in China. If a party has financial difficulties in bringing a lawsuit, he or she could borrow money from a third party under a debtor-creditor relationship. The third-party creditor does not share profits or bear the risks of the litigation.
Contingency fees are permitted in a private antitrust litigation but should not be higher than 30 per cent of the subject matter as specified in the agency contract.
8 Are jury trials available?
There is no jury system in China. However, China is applying and developing the people's juror system. The people's jurors are selected from citizens within the relevant court's jurisdiction. For first-instance cases, the people's jurors make up a collegial panel together with judges, and the collegial panel should be presided over by a judge. The people's jurors participate in finding of facts and application of law. They have the same power as judges, such as addressing independently in deliberation and casting votes for panel decisions, etc.
9 What pretrial discovery procedures are available?
There are no pretrial discovery procedures in China.
However, according to the Rules of the Supreme Court on Evidence in Civil Proceedings (Evidence Rules), the court may, at its own discretion or in response to application from the parties, organise an evidence exchange before trial. A member of judicial staff should preside over the exchange and record the evidence exchanged. When a party seeks to submit new evidence in rebuttal after receiving the evidence from the opposite, the court should inform the parties to exchange again. As a general rule, evidence exchange should be conducted on no more than two occasions unless the case is particularly significant, difficult or complex in nature.
10 What evidence is admissible?
Article 63 of the Civil Procedure Law divides the admissible evidence into seven categories:
• statements of the parties;
• documentary evidence;
• physical evidence;
• audio and visual materials;
• testimony of witnesses;
• expert opinions; and
• records of inspection.
The said evidence should be verified before it can be taken as a basis for ascertaining facts. Generally, the notarised facts and documents may be directly admitted by the court, except when there is evidence to the contrary sufficient to invalidate the notarisation.
For the purpose of verifying the authenticity of the evidence, article 70 of the Civil Procedure Law requires that the parties should present the originals of documentary evidence and physical evidence, and if the party has difficulty in presenting the originals, the copies, photographs, duplicates or transcripts may be presented instead.
When documentary evidence in a foreign language is to be presented, it must be accompanied by a Chinese translation.
For evidence originating from outside mainland China, the parties have to fulfil certain formalities before presenting it to the court; otherwise the evidence would be inadmissible. For evidence originating from Hong Kong, Macao and Taiwan, it should be notarised by a local notary office or attesting officer and certified by the China Legal Service (in Hong Kong and Macao), or coordinated by the Straits Exchange Foundation (in Taiwan). For evidence originating from outside Chinese territory, it should be notarised by a local notary office and authenticated by the Chinese embassy or consulate in the locality. In addition, the court may, at its own discretion or in response to application from the parties, investigate and collect evidence from relevant entities or individuals.
Expert opinion is admissible in a private antitrust litigation. According to article 12 of the AML Interpretation, a party may apply to the people's court to have one to two persons with expertise to appear in court to explain specialised issues involved in the case.
11 What evidence is protected by legal privilege?
Under Chinese law, there is no such concept as attorney-client privilege. In other words, confidential communications between attorneys and clients are not privileged.
Article 38 of the Lawyer's Law of China forbids lawyers from revealing information that the client or others decline to reveal to third parties, including trade secrets, privacy, and etc. However, this article does not relieve attorneys from the obligation to disclose this information in a judicial action. According to article 72 of the Civil Procedure Law, a court may order an attorney to give testimony about the knowledge of the pending case, including a client's privacy or trade secrets.
In addition, information that would otherwise be protected by attorney-client privilege in foreign jurisdictions is still under the said disclosure obligation.
The AML Interpretation provides that if the evidence involves state secrets, trade secrets, personal privacy or other content that shall be kept confidential pursuant to the law, the court may, at its own discretion or upon the application of the parties, take protective measures, such as having a private trial, restricting or prohibiting from copying; only disclosing to the lawyers involved and ordering the parties to sign an undertaking.
12 Are private actions available where there has been a criminal conviction in respect of the same matter?
Antitrust infringements cannot give rise to criminal liability under the Criminal Law of the People's Republic of China (Criminal Law).
However, there is one type of antitrust conduct, bid-rigging, which may be subject to the Criminal Law. According to article 223 of the Criminal Law, bid-rigging could be punished with a term of imprisonment of less than three years or a criminal fine, or both.
Any victim harmed by the bid-rigging may file a civil case concurrently with the criminal charge or file a separate civil case.
13 Can the evidence or findings in criminal proceedings be relied on by plaintiffs in parallel private actions? Are leniency applicants protected from follow-on litigation? Do the competition authorities routinely disclose documents obtained in their investigations to private claimants?
The Civil Procedure Law Interpretation further provides that facts that have been affirmed in the judgment that has taken effect do not need to be proved, except where a party concerned has enough contrary evidence to contradict them. Therefore, the civil claimant may present the relevant criminal judgment as evidence to assert facts in the civil proceeding. However, undertakings usually would not be subject to criminal liability for monopolistic conduct.
The National Development and Reform Commission and the State Administration for Industry and Commerce both apply leniency rules for reducing administrative penalties to those who confess first and provide substantial evidence to prove the antitrust cases. However, there are no rules protecting leniency applicants from follow-on litigation brought against them.
The AMEAs do not routinely disclose documents obtained in their investigations to a private claimant. However, for administrative decisions, the AMEAs may release to the public the facts and findings of antitrust investigation, which could be used by the claimant in the follow-on private antitrust litigation.
14 In which circumstances can a defendant petition the court for a stay of proceedings in a private antitrust action?
There are no specific provisions in the AML addressing the stay of proceedings in a private antitrust action. The general rules of civil procedure concerning the stay of proceedings should apply.
Pursuant to article 150 of the Civil Procedure Law, an action shall be stayed in any of the following circumstances:
• one of the parties dies and it is necessary to wait for his or her successor to state whether he or she wishes to participate in the action;
• one of the parties has lost the capacity to engage in litigation and his or her statutory agent has not been determined yet;
• the legal person or other organisation acting as one of the parties has terminated and the successor to its rights and obligations has not been determined yet;
• one of the parties is unable to participate in the action due to an event of force majeure;
• the case in question is dependent upon the outcome of the trial of another case that has not been concluded; or
• other circumstances require the stay of proceedings.
Proceedings shall be resumed after the cause of stay has been eliminated.
15 What is the applicable standard of proof for claimants?
Is passing on a matter for the claimant or defendant to prove? What is the applicable standard of proof?
As a general standard of proof in civil proceedings, ‘the high degree of probability' applies in private antitrust litigation.
Pursuant to article 73 of the Evidence Rules, where the parties concerned produce contradicting evidence to prove a fact, but neither has enough evidence to rebut the evidence of the other party, the court shall, by taking the case into consideration, determine which evidence is obviously more persuasive, and shall affirm the evidence that has more probative value. If the facts of a case are not identifiable because of the inability to determine the persuasiveness of the evidence, the court shall enter a judgment according to the rules for distributing the burden of proof.
In a civil action, the burden of proof usually lies with the claimant. That is, the claimant shall prove the facts on which the claims are founded, while the defendant shall present evidence to support the objections and counterclaims. The party that fails the burden of proof shall bear the adverse consequences.
Horizontal agreements
As a rule of thumb, the following horizontal agreements entered into between competitors are presumed to have anticompetitive effects according to the AML Interpretation:
• price fixing;
• limiting output or sales;
• segmenting sales markets or input purchasing markets;
• certain conduct hindering the development or adoption of new technology or new facilities; and
• joint boycott transactions.
The defendant shall have the burden to prove the above horizontal agreements do not have the effect of eliminating or restricting competition. For the standing, the horizontal agreement and causation of loss, the plaintiff shall bear the burden of proof.
Vertical agreements
As a rule of thumb, vertical agreements entered into between an undertaking and its trading counterparts are not presumed to have anticompetitive effects. The plaintiff shall bear the burden of proof for:
• the standing;
• the vertical agreement;
• anticompetitive effects;
• loss; and
• causation.
Abuse of dominance
According to the AML Interpretation, the court may find public utility enterprises or other undertakings having monopolistic status granted by law as dominant in the relevant market, based on the specific situations of the market structure and the competition, subject to the contrary evidence. In practice, the dominance has to be proved by the plaintiff. The plaintiff shall bear the burden to prove:
• the standing;
• market definition;
• dominance;
• abusive conduct;
• anticompetitive effects;
• loss; and
• causation.
Neither the distinction between direct purchaser and indirect purchaser, nor the passing-on defence, is specifically provided by the AML or the AML Interpretation. According to the general rules relating to burden of proof, the burden lies with the defendant who seeks to raise the passing-on defence to prove that the plaintiff passed on the whole or part of the overcharge resulting from the monopolistic conduct to its customers.
16 What is the typical timetable for collective and single party proceedings? Is it possible to accelerate proceedings?
Litigants are generally limited to one appeal. In general, the decision by the court of second instance is final and legally effective.
The timetable for civil proceedings is dependent upon the complexity of the case. The court shall abide by the trial time limit set by the Civil Procedure Law. Pursuant to article 243 of the Civil Procedure Law Interpretation, the trial time limit refers to the period from the date of placing the case on the docket to the day when a judgment is pronounced or a mediation statement is served, excluding the period for:
• announcement;
• examination by experts;
• reconciliation period of the parties;
• hearing of any objection to jurisdiction; or
• dealing with a jurisdictional dispute raised between the courts concerned.
Generally, when handling a case to which ordinary procedure is applicable, the court shall conclude the first-instance case within six months from the date of placing the case on file. Where an extension is required under special circumstances, a six-month extension may be given subject to the approval of the president of the court, provided that any further extension shall be reported to the court of higher level for approval. If a party disagrees with a first-instance judgment made by a local court, the party may appeal for a second-instance trial with an appeal petition to a higher-level court within 15 days from the date on which the written judgment was served.
The second-instance court shall conclude the case within three months from the date of accepting the appeal. Any extension of the time limit necessitated by special circumstances shall be subject to approval by the president of the court. Since the Civil Procedure Law and relevant regulations shed no light on the trial time limit of second instance cases, the second-instance court may extend the trial time limit at its own discretion when hearing complicated cases.
Considering the fact that the court is authorised to extend the time limit, it is quite understandable and normal to take a year or two to conclude a complicated civil case. And when the case involves expert examination, objection to jurisdiction or reconciliation, the proceeding may be dramatically lengthened.
The trial time limit for first and second instance cases shall not be applied to foreign-related civil cases. The Civil Procedure Law Interpretation provides guidance to determine foreign-related civil cases:
• a party or both parties involved in the case are foreigners, stateless persons, foreign enterprises or organisations;
• a party or both parties involved in the case have their habitual residence outside the territory of the People's Republic of China;
• the subject matter involved is outside the territory of the People's Republic of China;
• the legal fact that establishes, changes or terminates the civil relation occurs outside the territory of the People's Republic of China; or
• other circumstances.
Therefore, it is almost impossible to predict the timetable of foreign- related civil cases.
The aforementioned trial time limit in first- and second-instance cases shall also apply to collective actions.
17 What are the relevant limitation periods?
According to the newly come-into-effect General Principles of Civil Law and the AML Interpretation, the period of limitation of actions for claiming the damages arising from monopolistic practices shall be three years, commencing from the date on which the claimant knows or should know that its rights and interests were infringed.
If the claimant reports the alleged monopolistic practice to the AMEAs, the limitation period shall be suspended from the date of the report. If the AMEAs decide not to institute a case, to cancel the case or to terminate the investigation, the limitation period shall recommence from the date on which the claimant knows or should know the non-filing, cancellation of the case or the termination of the investigation. Upon investigation, if the AMEAs conclude that the action constitutes a monopolistic practice, the limitation period shall recommence from the date on which the claimant knows or should know that the decision of the AMEAs has become effective.
If the monopolistic practice has been continuing for more than two years by the time the claimant files an action in court and the defendant raises the limitation period in the defence, the damages shall be calculated two years from the date the claimant files the action in the court.
18 What appeals are available? Is appeal available on the facts or on the law?
Within statutory appeal time limits, any party who disagrees with the first instance judgment may appeal to a higher-level court with an appeal petition on the grounds that the first instance decision applied the law incorrectly, identified the facts inaccurately or unclearly, lacked sufficient evidence or violated statutory procedure.
If the parties concerned do not appeal, the first-instance judgment will be legally effective; if either party appeals, a bench of adjudicators will review the facts and the law of the case, and the judgments and rulings of the people's court of second instance shall be final.
However, the party who considers the final judgment as wrong may file for retrial on statutory grounds. The retrial will examine the existence of statutory grounds to determine whether to conduct a retrial. The retrial may also be initiated by the court system correcting itself.
Collective actions
19 Are collective proceedings available in respect of antitrust claims?
Yes. Collective actions are provided for in the Civil Procedure Law. If the object of the action is of the same category and a party consists of numerous persons, and upon institution of the action the number of persons is not yet determined, the court may issue an announcement for no less than 30 days, stating the particulars of the case and the claims, and requesting that the individuals concerned register with the court within a certain period of time. Individuals concerned shall prove the legal relationship with the opposing party and the damage suffered thereby; otherwise, the individual concerned will not be registered. Individuals concerned who have registered with the people's court may elect a representative to engage in litigation. Judgments or rulings rendered shall be binding on all the individuals concerned who have registered with the court. Such judgments or rulings shall apply to individuals concerned who did not register with the court but instituted actions during the limitation period.
20 Are collective proceedings mandated by legislation?
Collective proceedings are not mandated by the Civil Procedure Law. However, according to article 6 of the AML Interpretation, if two or more claimants file the lawsuits separately in the same competent same monopolistic practice, the people’s court may consolidate the cases.
If two or more claimants file the lawsuits with different competent courts separately for the same monopolistic practice, the court which the subsequent case was filed shall, within seven days after knowing of the other case filed earlier, order the transfer of the case to the court that accepted the case at an earlier date; and the court to which the case has been transferred may consolidate the cases. During the defence stage, the defendant shall take the initiative to provide the people's court accepting the lawsuit with the relevant information concerning the same cause of action for which the lawsuits are filed against it in other courts.
21 If collective proceedings are allowed, is there a certification process? What is the test?
Pursuant to article 54 of the Civil Procedure Law, for a collective action to be admissible the following requirements should be met:
• the object of the action must be of the same category; and
• a party must consist of numerous persons and on institution of the action the number of persons shall not yet be determined.
22 Have courts certified collective proceedings in antitrust matters?
There have been no collective proceedings regarding antitrust issues published as of April 2018.
23 Can plaintiffs opt out or opt in?
China applies the opt-in principle for collective proceedings. As mentioned in question 19, the individuals concerned may choose to register with the court within a certain period of time to become a member of the claimant group.
There are no provisions concerning the opt-out right of the claimant in collective proceedings. Considering the fact that the opt-out right is not specifically denied by law, the claimant should have the right to quit the collective proceedings.
24 Do collective settlements require judicial authorisation?
According to the Civil Procedure Law, collective settlement does not require judicial authorisation, but should be approved by the claimants.
25 If the country is divided into multiple jurisdictions, is a national collective proceeding possible? Can private actions be brought simultaneously in respect of the same matter in more than one jurisdiction?
A national collective proceeding is possible. As noted, following the announcement of the court, individuals concerned from other provinces may register to be a member of the claimant group.
Actions filed separately may be consolidated (see question 20). According to article 6 of the AML Interpretation, if two or more claimants file the lawsuits separately in different competent courts for the same monopolistic conduct, the court that accepts the case at a later date shall transfer the case to the court that accepted the case at an earlier date; and the court to which the case has been transferred may consolidate the cases. During the defence stage, the defendant shall inform the court if there are other lawsuits filed to other competent courts for the same conduct.
26 Has a plaintiffs' collective-proceeding bar developed?
No plaintiffs' collective-proceeding bar has developed yet.
Remedies
27 What forms of compensation are available and on what basis are they allowed?
Pursuant to the AML and the AML Interpretation, a claimant may request:
• compensation for the losses caused by the accused monopolistic conduct;
• cessation of the infringement;
• compensation for reasonable expenses incurred for investigation, attorney and other measures necessary to stop the monopolistic conduct; and
• the relevant agreement, decision of industrial associations or other documents in violation of the AML to be declared invalid.
The damages allowed in antitrust actions are limited to actual loss, and multiple damages are not available under the AML.
28 What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?
According to articles 100 and 101 of the Civil Procedure Law, the following interim remedies are available for either party to apply in both pretrial and trial stages:
• property preservation;
• evidence preservation; and
• temporary injunction.
In order to obtain an interim remedy, the applicant should present sufficient evidence to prove the risk of irreparable loss or damages it may suffer. The court may also require the applicant to provide security depending on the circumstances.
29 Are punitive or exemplary damages available?
No. The claimant may only claim damages actually incurred. There are no punitive or exemplary damages available under the AML.
30 Is there provision for interest on damages awards and from when does it accrue?
According to the Civil Procedure Law and its judicial interpretation, if a party subject to execution fails to perform the payment obligation within the time limit specified in a judgment, ruling or other legal document, the party shall pay twice the amount of interest on the debt for the period during which the performance is deferred. If a party fails to perform other obligations, the party shall pay a fine for delayed performance.
The interest incurred for failure to pay, and the fine incurred for delayed performance, accrue from the expiry date of the time limit specified in a judgment, ruling or other legal instrument.
31 Are the fines imposed by competition authorities taken into account when setting damages?
The purpose of the fines imposed by the AMEAs is to sanction the AML violations and to deter others from violating the AML. However, the purpose of damages in private antitrust actions is to compensate the losses caused by the monopolistic conduct. Since the nature of the fines and the damages are different, the court may not take into account the fines imposed by the AMEAs.
32 Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?
Generally, legal costs generated in private antitrust actions include a litigation fee and reasonable expenses to investigate the alleged conduct (eg, attorneys' fees).
The litigation fee, which should be paid to the court, consists of the following three categories:
• case acceptance fee;
• application fee; and
• the travel expenses, accommodation expenses, living expenses, and subsidy for missed work incurred by the witnesses, authenticators, interpreters and adjusters for appearing before the people's court on the date designated by the court.
The amount of the litigation fee depends upon the monetary value of the claim, the number of issues applied and the complexity of the whole case.
The claimant shall pay a case acceptance fee in advance when instituting a civil proceeding. The losing party is ordered to undertake all the legal costs. However, where each party succeeds on some matters and fails on others, the court may order that the litigation fee be shared or that each party bear its own costs.
33 Is liability imposed on a joint and several basis?
Under the Tort Law, two or more tortfeasors whose infringement causes damage to others, shall be jointly and severally liable. On the other hand, in the case that the breach of contract by several parties infringes upon the personal or property interests of the non-default party, the breaching parties are also jointly and severally liable.
Therefore, if an antitrust action is brought against two or more defendants for their anticompetitive conduct, each defendant may be held joint and severally liable for the full amount of the claimant's damage.
The compensation should be allocated in accordance with their apportioned shares of the responsibility. Where it is impossible to find their respective shares, all defendants should be held liable for an equal amount of compensation.
34 Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted?
Yes. The Tort Law provides that, where a defendant jointly and severally liable pays compensation of more than its liability for the damages, the defendant is entitled to claim a contribution or indemnification from other defendants. The aforesaid claims can be asserted in a different suit (ie, after the judgment or settlement).
35 Is the 'passing on' defence allowed?
Yes. Since in antitrust actions, the claimant may only claim for actual losses or damages, the defendant may argue that, by passing on the overcharge to an indirect customer, the claimant suffers no injury or less injury.
36 Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?
Yes. Defendants may defend themselves by the following:
• claiming lack of evidence to prove their dominance;
• incorrect market definition;
• no anticompetitive effect;
• the lack of causation between the alleged conduct and the damage; or
• the lack of standing to sue and the expiry of statute of limitations, etc.
Moreover, defendants may use any defence that would be used in civil actions.
The following circumstances of exemptions for horizontal monopoly agreements or the RPM are provided in article 15 of the AML:
• improving technologies, or engaging in research and development of new products;
• improving product quality, reducing cost, and enhancing efficiency, unifying specifications and standards of products, or implementing specialised division of production;
• increasing the efficiency and competitiveness of small and medium-sized undertakings;
• serving public interests in energy conservation, environmental protection and disaster relief;
• mitigating a sharp decrease in sales volumes or obvious overproduction caused by economic depression;
• safeguarding legitimate interests in foreign trade and in economic cooperation with foreign counterparts; or
• other purposes as prescribed by law or the State Council.
For situations specified in items (i) to (v), the undertakings shall, in addition, prove that the agreements reached will not substantially restrict competition in the relevant market and that they can enable consumers to share the benefits derived therefrom.
37 Is alternative dispute resolution available?
In civil proceedings, the parties may conclude a mediation statement during the mediation process held by the court or reach a settlement on their own.
In addition, the arbitration clause reached by the parties may not be used as a basis for determining the jurisdiction of the antitrust dispute. In Songsue v Samsung, in 2014, the distributor Songsue filed the antitrust complaint at the Nanjing Intermediate People's Court, alleging unfairly high pricing and bundling practices of Samsung. Samsung filed a petition challenging the jurisdiction of the Nanjing Intermediate Court because both parties signed sales agreements in 2012 and 2013 that stipulated they would resolve disputes through arbitration. The Nanjing Intermediate Court rejected the request and, in August 2016, the Jiangsu High Court issued the final decision confirming the ruling. The Jiangsu High Court ruled that there are no rules to arbitrate antitrust disputes and, because antitrust disputes involve the public interest, they should be heard in court.
