Monday, June 18, 2012
Posted by D. Daniel Sokol
James Modrall, Matthew Bachrack & Cunzhen Huang (Cleary) discuss Antitrust Litigation in China – A Step Forward.
ABSTRACT: The legal basis for private antitrust civil litigation in China is Article 50 of China’s Anti-Monopoly Law (the “AML”), which provides that “[w]here the monopolistic conduct of an undertaking has caused losses to another person, it shall bear civil liability according to law.” Since the AML entered into force on August 1, 2008, Chinese parties believing themselves to have been harmed by anti-competitive conduct have had more success in getting the attention of Chinese courts than of Chinese antitrust authorities. Chinese courts have reportedly accepted 61 antitrust cases and ruled on 53, although the courts have so far generally ruled in favor of the defendants. By contrast, China’s anti-monopoly enforcement authorities (the “AMEAs”) have been relatively inactive in non-merger enforcement of the AML. The National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”) have issued very few decisions regarding domestic cartels and have publicly reported only three abuse-of-dominance investigations. The legal framework for Chinese antitrust litigation took a significant step forward on June 1, 2012, when the judicial interpretation (the “Judicial Interpretation”) of China’s Supreme People’s Court (the “SPC”) regarding private civil litigation under the AML took effect. This is the first SPC judicial interpretation addressing the AML.