Friday, December 10, 2010
Posted by D. Daniel Sokol
Lester Ross (Wilmer Hale) addresses Litigation Under China's Anti-Monopoly Law.
ABSTRACT: Although China's Anti-monopoly Law (the "AML"), which entered into effect on August 1, 2008, is primarily enforceable by the three designated enforcement agencies, it also provides for civil liability. Article 50 provides:
If an undertaking engages in monopoly conduct and causes losses to others, it shall bear civil liability in accordance with law.
This barebones sentence provides the basis for civil litigation but provides little guidance on standing, causation, or evidentiary rules. A plaintiff must prove that (i) one or more defendants engaged in monopoly conduct, actionable under the AML, (ii) the plaintiff suffered losses, and (iii) such losses were caused by the defendant's conduct. Monopoly conduct may consist of engaging in a monopoly agreement or concerted action under Chapter II, abuse of a market dominant position or unilateral conduct under Chapter III, or abuse by an administrative authority or organization with administrative functions under Chapter V claims. Defendants are "undertakings," defined in Article 12 as "any natural person, legal person or other organization that engages in the manufacture and transaction of commodities or provision of services."